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cnnUnu. 
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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


HORNBOOK  CASE  SERIES 


ILLUSTRATIVE  CASES 


ON 


MUNICIPAL  CORPORATIONS 


By   ROGER  W.  COOLEY,    LL.M. 

Professor  of  Law,  University  of  North  Dakota 

Adthor  of  "Briefs  on  the  Law  of  Insurance,"  "Law  of  Municipal  Corporations' 

"Illustrative    Cases   on    Persons  and    Domestic    Relations," 

"Illustrative  Cases  on  Damages,"   "Illustrative 

Cases  on  Insurance  "  and  "Illustrative 

Cases  on  Sales  " 


A  COMPANION  BOOK 

TO 

COOLEY  ON  MUNICIPAL  CORPORATIONS 


St.  Paul,  Minn. 

WEST  PUBLISHING   CO. 

1913 


COPTEIGHT,    1913 
BY 

WEST  PUBLISHING  COMPANY 
(CooLEY  Cases  Mun.C.) 

r 

1913 


THE  HORNBOOK  CASE  SERIES 


It  is  the  purpose  of  the  publishers  to  supply  a  set  of  Illustrative 
Casebooks  to  accompany  the  various  volumes  of  the  Hornbook  Series, 
to  be  used  in  connection  with  the  Hornbooks  for  instruction  in  the 
classroom.  The  object  of  these  Casebooks  is  to  illustrate  the  prin- 
ciples of  law  as  set  forth  and  discussed  in  the  volumes  of  the  Horn- 
book Series.  The  text-book  sets  forth  in  a  clear  and  concise  manner 
the  principles  of  the  subject;  the  Casebook  shows  how  these  princi- 
ples have  been  applied  by  the  courts,  and  embodied  in  the  case  law. 
With  instruction  and  study  along  these  lines,  the  student  should  se- 
cure a  fundamental  knowledge  and  grasp  of  the  subject.  The  cases 
on  a  particular  subject  are  sufficiently  numerous  and  varied  to  cover 
the  main  underlying  principles  and  essentials.  Unlike  casebooks 
prepared  for  the  "Case  Method"  of  instruction,  no  attempt  has  been 
made  to  supply  a  comprehensive  knowledge  of  the  subject  from  the 
cases  alone.  It  should  be  remembered  that  the  basis  of  the  instruc- 
tion is  the  text-book,  and  that  the  purpose  of  these  Casebooks  is  to 
illustrate  the  practical  application  of  the  principles  of  the  law. 

West  Publishing  Company. 
(iii)* 


72923:i 


TABLE  OF  CONTENTS 


CORPORATIONS— PUBLIC  AND  PRIVATE 

Page 

I.     Pul»lic  Corporatious — Classification 1 

II.     Municipal  Corporations — Distinguishing  Elements 4 

CREATION  OF  MUNICIPAL  CORPORATIONS 

I.     Power  to  Create  Municipal  Corporations — Delegation  of  Power. .  12 

IT.     Legislative    Discretion 15 

III.     Legislative  Power — How  Exercised 16 

1.     Self-Chartered    Cities 16 

IV.  Territory  and   Population 20 

V.     Assent    to    Incorporation ,. 24 

VI.     Corporations  by  Implication  or  Prescription 25 

VII.     Validity  of  Incorporation — De  Facto  Corporations 30 

VIII.     Validity  of   Incorporation — How  Tested , 31 

IX.     Operation  and  Effect  of  Incorporation 33 

LEGISLATIVE  CONTROL 

I.     Legislative  Control  in  General 36 

II,     Offices   and  Officers 45 

III.  Public  Funds  and   Revenues 45 

IV.  Obligations  Imposed  by  Legislature 49 

V.  Public    Thoroughfares 57 

ALTERATION  AND  DISSOLUTION 

I.     Territorial  Increase  or  Decrease 61 

1.  In    General 61 

2.  What  Territory  may  be  Annexed 67 

II.     Consolidation     71 

III.     Operation  and  Effect  of  Annexation,  Division  or  Consolidation....  74 

IV.     Repeal   of  Charter  and  Dissolution S!) 

V.     Reincorporation    03 

THE  CHARTER 

L     Municipal    Powers — Inherent — Express — Implied 07 

1.  In    General 07 

2.  General    Welfare    Clause 100 

II.  Exercise  of   I'owers 108 

PROCEEDINGS  AND  ()KI»I  NANCES 

I.     The   Governing  Rody 114 

1.     Dc    F:ut(i   Council 114 

IT.     Mode   of  Action JK! 

III.  Mcclings    110 

IV.  Onliniinccs — Mode  of  Eiiactnicnt 122 

CooLEY  Cases  Mun.C.  (v) 


Vi  TABLE  OF  CONTENTS 

Pagp 

V.     Essentials  of  Valid  Ordinance 129 

1.  Must  Not  he  Oppressive 129 

2.  Must  Not  Contravene  a  Common  Right l'i~ 

3.  Must  Not  he  Unreasonahle 135 

OFFICERS,  AGENTS,  AND  EMPLOYES 

I.     Elisihility    14G 

II.     Appointment   and    Election 149 

III.  Officers   De  Facto 154 

IV.  Salary    158 

V.     Removal    161 

VI.     Personal    Liability— Contracts 164 

VII.     Personal    Liability— Torts 166 

CONTRACTS 

I.     Contracting    Agencies 168 

II.     Mode   of    Contracting 170 

III.  Letting    of    Contracts 175 

IV.     Term  and  Duration  of  Contract — Power  to  Bind  Successors 186 

V.     Ultra    Vires    Contracts 190 

VI.     Same — Ratification  and  Estoppel 196 

VII.     Implied    Promise 199 

IMPROVEMENTS 

I.     General  and  Local  Improvements  Distinguished 202 

II.     Power  to  Make  or  Aid 206 

III.     Preliminary    Proceedings 207 

IV.  Special    Assessments 216 

POLICE  POWERS  AND  REGULATIONS 

I.     Extent  and  Limitation  of  Power 231 

II.     Peace    and    Order 232 

IIL     Sanitation    235 

IV.     Safety    239 

V.     Occupations  and  Amusements 247 

STREETS,  SEWERS,  PARKS,  AND  PUBLIC  BUILDINGS 

I.  Use  of  Streets 254 

II.  Abutting    Owners 269 

TORTS 

I.     Governmental  and  Municipal  Duties  Distinguished 275 

II.  Care  of  Streets 281 

III.  Obstructions 288 

IV.  Sidewalks   290 

V.     Drains   and    Sewers 296 

DEBTS,  FUNDS,  EXPENSES  AND  ADMINISTRATION 

I.     Limitation  of   Indebtedness 299 

II.     Borrowing    Money 303 

III.  Municipal   Bonds — Power   to  Issue 309 

IV.  Rights   of  Creditors 319 


TABLE   OF   CONTEXTS  "^^^ 


TAXATION  Page 

325 

I.  Source  of  Power .^^^ 

II.  Public   Purpose  Only ^.^ 

III,     Subjects  of  Taxation 

ACTIONS 

344 

I.     Mandamus    047 

II.     Quo    Warranto *   o^c) 

III.     Certiorari 351 

IV.     Injunction    

QUASI  CORPORATIONS 

355 
I.     Distinguishing    Elements ^^^ 

II.  Counties    35'Y 

III.  Torts    3g6 

lY.     County    Bonds 


TABLE     OF  CASES 


Page 

Adams  v.  Diicate 338 

Addiugton  v.  Littleton 279 

Allen  V.  La  Fayette 303 

Askew  V.  Hale  County 355 

Bell  V.  Kirkland 190 

Berlin  v.  Gorham 15 

Blyhl  V.  Waterville 290 

Board    of    Com'rs    of    Hamilton 

County  V.  Mighels 4,  355,  356 

Boutte  V.    Emmer 1G6 

Broadfoot  v.   Fayetteville 93 

Broderick  v.   St.  Paul 170 

Broking  v.  Van  Valen 25 

Brown  v.   Bon   Homme  County.  .  372 
Buckley   v.    Tacoma 207 

Chippewa    Bridge   Co.   v.   Durand  175 
Citv  Council  of  Augusta  v.  Bur- 

um    2&i 

City  of  Biddeford  v.  Yates 108 

City  of  Chariton  v.   Simmons 232 

City  of  Chicago  v.  Gunning  Sys- 
tem       129 

City  of  Crawfordsville  v.  Braden  100 

City  of  Denver  v.  Coulehan 61 

City  of  Duluth  V.  Krupp 250 

City   of   Fergus    Falls   v.    Fergus 

Falls  Hotel  Co 196 

City  of  Guthrie  v.  Territory.  .  .30,  52 
City    of    La    Porte    v.    Gamewell 

Flre-Alarm  Tel.  Co 299 

City  of  New  Orleans  v.  Clark.  .46.  52 

City  of  Raleigh  v.   Ponce 206,  218 

City   of  St.   I'aul   v.   Chicago,   M. 

&  St.  P.  B.  Co 259 

City   of   Wal.asha   v.    Southworth  293 

Claihorne  County   v.   P.rooks 3(>6 

Commonwealth    v.    Crowninshield  242 

Coombs    V.    MafDnnald L'."',l 

Cunningham   v.    Seattle USO 

Diamond    v.    Mankato IS.'*, 

Dodge   V.    Memplils 317 

Fry  V.  .Mhcmarle  County 363 

CooLEY  Cases  MuN.C.  (i 


Page 

Garrabad,   In   re 135 

Gray  v.  Burr 214 

Green  v.  Cape  May 99 

Gutzweller  v.  Peoi)le 45 

Hansen  v.  Hirsch 52,  57 

International  Trading  Stamp  Co. 

V.    Memphis 351 

Ivins  V.  Trenton 271 

Jackson  v.  Greenville 281,  293 

.Tewell  Belting  Co.  v.  Bertha 168 

Johnson  v.  San  Diego 83 

Jones   V.   Clinton 286 

Kansas  City  v.  Lemen 275 

Knobloch  v.  Chicago,  M.  &  St.  P. 
R.  Co 245 

Laugel  V.  Bushnell 235 

Lawrence  v.   Ingersoll 149 

Lawrence  v.  Toothaker 164 

McAllen   v.    Ilamblin 97 

Magneau   v.    PYemont 116,  119 

Manning  v.  De\ils  Lake .332 

Markey   v.   Queens   County 357 

Maniuis  v.   Santa  Ana 158 

Merchants'  Nat.  Bank  of  St.  Paul 

V.  East  Grand  Forks 49 

Merrill  v.  Monticello 309 

Mills  V.   Williams 1,  355,  356 

Mt.  Pleasant  v.  Beckwith 74 

Oliver   v.   Jersey  City 154 

Osborne  v.   Oakland 347.  354 

Palmer   v.   Danville 202.  225 

Payne  v.   South   Siiringfield 20."'. 

Peojile   V.   Arnistmiig 141 

Pcoiile   V.    Ilurliint 36,45 

Pcoide  V.  Wagner 247 

P.'I'ln    V.    Sage 89 

Perkin.s    v.    Burlington 340 


TABLE    OF    CASES 


Page 
Raymond's   Estate  v.   Rutherford  210 

Roche  V.  Jones 114 

Kuuisey  v.   Sauk  Ceutre o-'J 

St.    Paul    Gaslight    Co.    v.    Sand- 
stone      •>! 

Shapleigh  v.   San  Angelo 319 

Simon   v.   Northrnp 52,57 

Smith   V.   Cruteher 24 

State' V.  Cincinnati 71 

State  V.    Denny 4 

State  V.    Bering 1.35 

State  V.   Des   Moines .325 

State  V.    Duluth IGl 

State  V.   Gilbert 20 

Srate  v,  Jolinson 239 

State  V.    O'Connor 16 

State  V.  Ray 132 

State  V.    Simons 12 

State  V.  Sullivan 146 


Page 

Stevens  v.  Miller 344 

Swindell   v.   State 122 

Tate  V.  St.  Paul 296 

Taylor  v.   Waverly .341 

Thunborg  v.   Pueblo 288 

Tice  V.  Bay  City 285 

Town  of  Newport  v.  Batesville  «& 

B.  K.  Co 106 

Townsend  v.  Epstein 254 

Vestal   V.   Little  Rock 67 

Village  of  Pillager  v.  Hewitt 199 

Westminster  Water  Co.  v.  West- 
minster       186 

Wilson,    In   re 116,  349 

Zimmerman    v.    Metropolitan    St. 
R.   Co 269 


HORNBOOK  CASES 

ON 

MUNICIPAL  CORPORATIONS 


CORPORATIONS— PUBLIC  AND  PRIVATE 
I.  Public   Corporations — Classification^ 


MILLS  V.  WILLIAMS. 
(Supreme  Court  of  North  Carolina,  1850.    33  N.  C.  558.) 

Pearson,  J.  In  1816,  the  legislature  established  a  county  by  the 
name  of  "Polk."  In  pursuance  thereof  justices  of  the  peace  were  ap- 
pointed, courts  organized,  and  a  sheriff  and  other  county  officers 
elected,  who  entered  upon  the  discharge  of  the  duties  of  their  respec- 
tive offices.  In  1848  the  act  of  1846  was  repealed,  and  the  question  is 
presented,  has  the  legislature  a  right,  under  the  constitution,  to  repeal 
an  act,  by  which  a  county  is  established? 

From  the  formation  of  our  state  government,  the  general  assembly 
has,  from  time  to  time,  changed  the  limits  of  counties,  and  has,  over 
and  over  again,  made  two  counties  out  of  one,  so  that  in  many  in- 
stances, even  the  name  of  the  old  county  has  been  lost ;    and  it  would 
seem  to  an  unsophisticated  mind,  that,  where  there  is  the  power  to 
make  two  out  of  one,  there  must  be  the  corresponding  power  to  make 
one  out  of  two.     In  other  words,  as  the  legislature  has,  undoubtedly, 
the  power  to  divide  counties,  where  they  are  too  large,  that  there  is  the 
same  power  to  unite  them,  when  they  are  too  small;    the  power  in 
both  cases  being  derived  from  the  fact  that  by  the  constitution  "all 
legislative  power  is  vested  in  the  general  assembly,"  which  necessarily 
embraces  the  right  to  divide  the  state  into  counties  of  convenient  size, 
for  the  good  government  of  the  whole.     Political  and  other  collateral 
considerations  are  apt  to  connect  themselves  with  the  subject  of  cor- 
porations, and  thereby  give  to  it  more  importance  than  it  deserves  as 
a  dry  question  of  law ;   and  the  unusual  amount  of  labor  and  learning. 
bestowed  on  it,  has  tended  to  mystify  rather  than  elucidate  the  sub- 
ject.   Divested  of  this  mystery,  and  measured  in  its  naked  proportions, 
a  corporati  "  is  an  artificial  body,  possessing  such  powers,  and  having 

1  For  dlscu.ssion  of  principles,  see  Cooley,  Muu.  Corp.  §§  4,  5. 
CooLEY  Cases  Mun.C— 1 


ii  CORPORATIONS — PUBLIC    AND   PRIVATE 

such  capacities,  as  may  be  given  to  it  by  its  maker.  The  purpose  in 
making  all  corporations,  is  the  accomplishment  of  some  public  good. 
Hence,  the  division  into  public  and  private  has  a  tendency  to  confuse 
and  lead  to  error  in  the  investigation ;  for,  unless  the  public  are  to  be 
benefited,  it  is  no  more  lawful  to  confer  "exclusive  rights  and  privileg- 
es" upon  an  artificial  body,  than  upon  a  private  citizen. 

The  substantial  distinction  is  this :  Some  corporations  are  created 
by  the  mere  will  of  the  legislature,  there  being  no  other  party  inter- 
ested or  concerned.  To  this  body  a  portion  of  the  power  of  the  legis- 
lature is  delegated  to  be  exercised  for  the  public  good,  and  subject  at 
all  times  to  be  modified,  changed,  or  annulled. 

Other  corporations  are  the  result  of  contract.  The  legislature  is 
not  the  only  party  interested ;  for  although  it  has  a  public  purpose  to 
be  accomplished,  it  chooses  to  do  it  by  the  instrumentality  of  a  second 
party.  These  two  parties  make  a  contract.  The  legislature,  for  and 
in  consideration  of  certain  labor  and  outlay  of  money,  confers  upon 
the  party  of  the  second  part  the  privilege  of  being  a  corporation,  with 
certain  powers  and  capacities.  The  expectation  of  benefit  to  the  pub- 
lic is  the  moving  consideration  on  one  side ;  that  of  expected  remunera- 
tion for  the  outlay  is  the  consideration  on  the  other.  It  is  a  contract ; 
and,  therefore,  cannot  be  modified,  changed,  or  annulled  without  the 
consent  of  both  parties. 

So,  corporations  are  either  such  as  are  independent  of  all  contract, 
or  such  as  are  the  fruit  and  direct  result  of  a  contract. 

The  division  of  the  state  into  counties  is  an  instance  of  the  former. 
There  is  no  contract,  no  second  party ;  but  the  sovereign,  for  the  bet- 
ter government  and  management  of  the  whole,  chooses  to  make  the 
division  in  the  same  way  that  a  farmer  divides  his  plantation  ofif  into 
fields  and  makes  cross  fences,  where  he  chooses.  The  sovereign  has 
the  same  right  to  change  the  limits  of  counties  and  to  make  them 
smaller  or  larger  by  putting  two  into  one,  or  one  into  two,  as  the 
farmer  has  to  change  his  fields ;  because  it  is  an  affair  of  his  own,  and 
there  is  no  second  party,  having  a  direct  interest. 

A  railroad  is  an  instance  of  the  latter.  Certain  individuals  propose 
to  advance  capital,  and  make  a  road  by  which  it  is  supposed,  the  pub- 
lic are  to  be  benefited,  in  consideration  that  the  legislature  will  incorpo- 
rate them  into  a  company  with  certain  privileges.  The  bargain  is 
struck;  neither  party  has  a  right  to  modify,  change,  annul,  or  repeal 
the  charter  without  the  consent  of  the  other ;  and  (still  to  borrow  an 
illustration  from  the  farmer)  he  has  in  this  case  leased  out  his  fields  at 
a  certain  rent,  and  has  no  right  to  make  one  larger  and  another 
smaller,  without  the  consent  of  his  tenant. 

Roads  furnish  another  familiar  illustration :  The  county  court  has 
a  public  road  laid  out,  and  an  overseer  and  hands  appointed.  It  may 
be  altered  or  discontinued  by  the  county  authorities,  and  the  overseer 
and  hands  have  no  direct  interest  or  right  to  be  heard  in  the  matter, 


PUBLIC   CORPORATIONS — CLASSIFICATION  o 

except  as  other  citizens.  But  if  the  legislature,  instead  of  acting  by  its 
agent,  the  county  authorities,  choose  to  make  a  contract  with  certain 
individuals,  that,  if  they  will  raise  funds  and  make  a  road,  they  shall 
be  incorporated  with  the  right  to  exact  tolls,  etc.,  then  the  road  can- 
not be  altered  or  discontinued  without  the  consent  of  the  corporation. 

When  a  county  is  established,  it  is  done  at  the  mere  will  of  the 
legislature,  because  in  its  opinion  the  public  good  will  be  thereby  pro- 
moted. There  is  no  second  party  directly  interested  or  concerned. 
There  is  no  contract,  for  no  consideration  moves  from  any  one,  and 
without  a  consideration,  there  cannot  be  a  contract.  The  discharge 
of  certain  duties  by  the  persons,  who  are  appointed  justices  of  the 
peace,  or  sheriff,  clerk,  or  constable,  can,  in  no  sense  of  the  word,  be 
looked  upon  as  a  consideration  for  establishing  the  county:  In  legal 
parlance,  the  "consideration  is  past" — the  thing  is  done,  before  their 
appointment.  Some  act  for  the  honor  of  the  station,  others  for  the 
fees  and  perquisites  of  office;  but  their  so  doing  did  not  form  a  con- 
sideration for  the  erection  of  the  county,  and  is  a  mere  incident  to 
their  relation  as  citizens  of  the  county. 

It  was  ingeniously  argued  that,  upon  the  erection  of  a  county,  cer- 
tain rights  attach  by  force  of  the  constitution,  as  the  right  to  have  at 
least  one  member  in  the  house  of  commons ;  and  as  these  rights  are 
conferred  by  the  constitution  it  is  insisted  that,  having  attached,  it  is 
not  in  the  power  of  the  legislature  to  take  them  away. 

The  argument  is  based  upon  a  fallacy.  It  is  true,  the  constitution 
invests  ever>'  county  with  certain  rights  as  incident  to  its  existence  as 
a  county.  But,  by  no  sound  reasoning,  can  the  incident  be  made  to 
override  the  principle;  and  the  constitution,  by  conferring  these  in- 
cidental rights,  cannot  be  by  any  fair  inference  made  to  interfere  with 
the  control  of  the  legislature  on  the  subject  of  counties,  as  instruments 
for  the  good  government  and  management  of  the  whole  state. 

The  constitution  preordains  these  rights,  but  they  are  put  expressly 
as  incidents  to  the  existence  of  counties ;  and  although  they  may  very 
properly  enter  into  the  question  of  expediency,  they  have  no  legislative 
bearing  upon  the  power  to  create  and  abolish  counties  as  may  to  the 
wisdom  of  the  legislature  seem  fit.  Such  statutes  are  not  the  result  of 
contracts.  There  is  no  second  party  who  pays  a  consideration,  which 
is  the  essence  of  every  contract.  Terrett  v.  Taylor,  9  Cranch,  43,  3 
L.  Kd.  6.S0;  Dartmouth  College  v.  Woodward,  4  Wheat.  663,  4  L.  Ed. 
629;    T'hillips  v.  lUiry,  2  Term  R.  346. 

Judgment  affirmed. 


4  CORPOKATIONS — PUBLIC   AND   PRIVATE 

BOARD  OF  COM'RS  OF   HAMILTON  COUNTY  v.  MIGHELS. 

(Supreme  Court  of  Ohio,  1S57.     7  Ohio  St.  109.) 

BrinkErhoff*,  j  2  *  *  *  por  the  purpose  of  maintaining  this 
action,  an  effort  has  been  made  in  argument  to  assimilate  counties 
to  natural  persons  and  municipal  and  other  corporations  proper. 
*  *  *  And  it  is  freely  admitted  that  if  counties  are  in  all  ma- 
terial respects  like  municipal  corporations  proper,  and  may  be  fair- 
ly classed  with  them,  then  this  action  ought  to  be  maintained.  But 
how  is  the  fact  ?  This  question  is  vital,  and  on  its  solution  the  case 
must  depend.  As  before  remarked,  municipal  corporations  proper 
are  called  into  existence  either  at  the  direct  solicitation  or  by  the  free 
consent  of  the  people  who  compose  them. 

Counties  are  local  subdivisions  of  a  state,  created  by  the  sover- 
eign power  of  the  state,  of  its  own  sovereign  will,  without  the  par- 
ticular solicitation,  consent,  or  concurrent  action  of  the  people  who 
inhabit  them.  The  former  organization  is  asked  for,  or  at  least  as- 
sented to,  by  the  people  it  embraces ;  the  latter  is  superimposed  by  a 
sovereign  and  paramount  authority. 

A  municipal  corporation  proper  is  created  mainly  for  the  interest, 
advantage,  and  convenience  of  the  locality  and  its  people;  a  county 
organization  is  created  almost  exclusively  with  a  view  to  the  policy 
of  the  state  at  large,  for  purposes  of  political  organization  and  civil 
administration,  in  matters  of  finance,  of  education,  of  provision  for 
the  poor,  of  military  organization,  of  the  means  of  travel  and  trans- 
port, and  especially  for  the  general  administration  of  justice.  With 
scarcely  an  exception,  all  the  powers  and  functions  of  the  county 
organization  have  a  direct  and  exclusive  reference  to  the  general 
policy  of  the  state,  and  are,  in  fact,  but  a  branch  of  the  general  ad- 
ministration of  that  policy.  Ward  v.  Hartford  County,  12  Conn. 
406;  Boalt  v.  Commissioners,  18  Ohio,  16;  Cincinnati,  W.  &  Z.  R. 
Co.  v.  Commissioners  of  Clinton  County,  1  Ohio  St.  89.     *     *     * 


II.  Municipal  Corporations — Distinguishing  Elements 


STATE  ex  rel.  JAMESON  v.  DENNY. 

(Supreme  Court  of  Indiana,  1889.     118  Ind.  382,  ^1  N.  E.  252,  4  L.  R.  A.  79.) 

Application  for  writ  of  mandamus.  On  March  19,  1889,  there 
was  filed  in  the  office  of  the  secretary  of  state  what  purports  to  be 
an  act  of  the  general  assembly  of  the  state  of  Indiana.     The  act  pro- 

2  Part  of  the  opinion  is  omitted. 

8  For  discussion  of  principles,  see  Cooley,  Mun.  Corp.  §§  6,  7. 


MUNICIPAL   CORPORATIONS — DISTINGUISHING    ELEMENTS  O 

vides  for  the  establishment,  in  all  cities  in  this  state  containing  a 
population  of  50,000  inhabitants  or  more,  of  a  board  of  public  works 
and  affairs,  to  consist  of  three  members  selected  from  the  two  lead- 
ing political  parties,  one  member  of  said  board  to  hold  his  office  for 
the  period  of  two  years  from  the  date  of  his  selection,  and  the  other 
two  members  are  to  hold  their  offices  for  the  period  of  four  years. 
The  members  of  such  board  must  have  been  freeholders  of  the  city 
at  least  one  year  prior  to  their  election,  and  must  have  been  bona 
fide  residents  of  the  city  at  least  five  years.  Each  member  of  such 
board  is  required  to  execute  a  bond  in  the  sum  of  $20,000,  to  the 
approval  of  the  mayor  of  the  city,  for  the  faithful  performance  of 
the  duties  of  his  office.  The  act  abolishes  all  existing  boards  of 
public  improvement  and  the  office  of  street  commissioner,  and  con- 
fers on  the  board  of  public  works  and  affairs  thereby  created  the 
power  to  perform  all  the  duties  heretofore  conferred  upon  such 
board  of  public  improvements  and  street  commissioner.  It  also  gives 
such  board  of  public  works  and  affairs  full  power  to  construct  all 
streets,  alleys,  avenues,  bridges,  sewers,  drains,  ditches,  culverts, 
sidewalks,  and  curbing,  and  to  take  charge  of  the  cleaning,  repair- 
ing* grading,  and  improving  of  the  same ;  and  to  make  all  contracts 
for  the  furnishing  of  lights  for  the  streets,  public  buildings,  and  pub- 
lic places  in  the  city,  and  for  furnishing  water  for  the  city  for  every 
purpose.  It  has  the  exclusive  power  to  employ  such  superintend- 
ents, laborers,  or  other  persons  as  it  may  deem  necessary  for  the  exe- 
cution of  its  business,  and  fix  their  salaries  and  compensation.  By 
the  terms  of  said  act  the  board  of  public  works  and  affairs  is  to  have 
the  exclusive  power  and  control  over  the  construction,  supervision, 
cleaning,  repairing,  grading,  and  improving  all  streets,  alleys,  ave- 
nues, lanes,  bridges,  drains,  culverts,  sidewalks,  and  curbing,  and  the 
lighting  of  such  public  places  as  may  be  deemed  necessary  in  such 
city ;  to  fix  and  establish  the  grades  of  all  streets  and  alleys,  avenues 
and  thoroughfares.  It  may  order  and  construct  the  improvement 
of  any  street,  alley,  or  thoroughfare  in  the  city,  where  a  majoritv 
of  the  property  owners  affected  thereby  do  not  remonstrate.  It  has 
the  exclusive  power  to  make  all  improvements  and  expenditures. 
Such  board  is  entitled  t<j  possession  of  all  property  belonging  to 
the  city  used  for  the  purposes  named  in  the  act,  and  it  is  made  the 
duty  of  the  common  council  to  provide  for  the  payment,  out  of  the 
city  treasury,  of  all  the  expenses  incurred  by  the  board  of  public 
works  and  affairs.  It  also  makes  it  the  duty  of  the  general  assembly 
of  the  state  to  elect  the  board  of  public  works  and  affairs  by  a  joint 
vote  of  a  majority  thereof.  In  case  of  a  vacancy  in  such  board,  it 
is  made  the  duty  of  the  mayor  of  such  city  to  fi]]  the  same  by  ap- 
pointment. 

Pursuant  to  the  terms  of  this  act,  the  relators  were  elected  by  the 
general  assembly  of  the  state  of  Indiana  as  members  oi  the  board  of 


C  CORPORATIONS — PUBLIC   AND   PRIVATE 

public  \Yorks  and  afifairs  for  the  city  of  Indianapolis,  prepared  the 
bonds  therein  required,  and  tendered  the  same  to  the  mayor  of  said 
city  for  his  approval.  The  mayor  declined  to  approve  said  bonds, 
and  this  action  was  brought  in  the  superior  court  of  Marion  county 
to  compel  him  by  mandate  to  discharge  that  duty.  The  rulings  of 
said  court  being  adverse  to  the  relators,  they  appeal  to  this  court, 
and  assign  error. 

Coffey,  j.*  *  *  *  Admitting  for  the  time  being  that  the  act 
in  question  is  otherwise  valid,  it  is  insisted  that,  under  our  constitu- 
tion, the  general  assembly  had  no  power  to  elect  or  appoint  the  ap- 
pellants, and  that  so  much  of  the  act  as  attempts  to  confer  on  it  such 
power   is   in   conflict   with   the   constitution,   and  is   therefore  void. 

=:         *         * 

It  is  to  be  observed  that  the  act  takes  away  from  cities  having  a 
population  of  50,000  inhabitants  or  more  all  control  over  the  streets 
and  alleys,  lights  and  water-supply,  and  transfers  them  to  a  board 
in  the  selection  of  which  the  people  of  the  city  have  practically  no 
voice.  It  is  claimed  that,  inasmuch  as  it  practically  deprives  the 
people  of  the  power  of  local  self-government,  it  is  in  conflict  with 
our  organic  law,  and  is  therefore  void.  In  passing  upon  this  ques- 
tion, it  is  necessary  that  we  keep  in  mind  the  well-established  rule 
by  which  we  are  to  determine  the  constitutionality  or  the  unconstitu- 
tionality of  a  statute.  The  power  of  the  courts  to  declare  a  statute 
unconstitutional  is  a  high  one,  and  is  very  cautiously  exercised,  and 
is,  in  fact,  never  exercised  in  doubtful  cases.  Robinson  v.  Schenck. 
102  Ind.  307,  1  N.  E.  698.  An  act  of  the  legislature  is  not  to  t)e 
declared  unconstitutional,  unless  it  is  clearly,  palpably,  and  plainly 
in  conflict  with  the  constitution.  Groesch  v.  State,  42  Ind.  547. 
Judge  Cooley,  in  his  able  and  valuable  work  on  Constitutional  Lim- 
itations (5th  Ed.  p.  208),  says:  "It  does  not  follow,  however,  that 
in  every  case  the  courts,  before  they  can  set  aside  a  law  as  invalid, 
must  be  able  to  find  in  the  constitution  some  specific  inhibition 
which  has  been  disregarded,  or  some  express  command  which  has 
been  disobeyed.  Prohibitions  are  only  important  where  they  are  in 
the  nature  of  exceptions  to  a  general  grant  of  power,  and,  if  the 
authority  to  do  an  act  has  not  been  granted  by  the  sovereign  to  its 
representative,  it  cannot  be  necessary  to  prohibit  its  being  done." 

With  these  reasonable  and  well-established  rules  constantly  in 
view,  we  proceed  to  examine  the  question  of  the  constitutionality  of 
the  act  now  before  us.  In  doing  so,  it  must  be  obvious  to  every  one 
that  the  constitution  must  be  considered  in  the  light  of  the  local  and 
state  governments  existing  at  the  time  of  its  adoption.  Considered 
in  any  other  light,  many  expressions  found  therein  would  be  with- 
out meaning.    That  the  principles  of  local  self-government  constitute 

4  The  statement  of  facts  is  rewritten  and  parts  of  the  opinions  of  Coffey,  J., 
and  Elliott,  C.  J.,  and  all  of  the  dissenting  opinion  of  Mitchell,  J.,  are  omitted. 


MUNICIPAL   CORPORATIONS — DISTINGUISHING    ELEMENTS  7 

a  prominent  feature  in  both  the  federal  and  state  governments  is  a 
fact  not  to  be  denied.  It  is  recognized  in  Indiana  in  the  constitu- 
tion of  1816,  and  in  the  constitution  of  1851.  It  is  truthfully  said 
by  the  learned  judge  who  delivered  the  majority  opinion  in  the  su- 
perior court  "that  it  existed  before  the  creation  of  any  of  our  con- 
stitutions, national  and  state,  and  all  of  them  must  be  deemed  to  have 
been  framed  in  reference  to  it,  whether  expressly  recognized  in  them 
or  not.  Indeed,  it  is  recognized  as  the  chief  bulwark  for  the  protec- 
tion of  the  liberties  of  the  people  against  too  great  centralization  of 
power,  either  in  executive  or  legislative  departments  of  the  state." 

It  is  perhaps  true  that  the  general  assemply  may  at  will  pass  laws 
regulating  the  government  of  towns  and  cities,  taking  from  them 
powers  which  had  previously  been  granted,  or  adding  to  that  which 
had  previously  been  given,  but  we  do  not  think  that  it  can  take 
away  from  the  people  of  a  town  or  city  rights  which  they  possess 
as  citizens  of  the  state  before  their  incorporation.  The  object  of 
granting  to  the  people  of  a  city  municipal  powers  is  to  give  them 
additional  rights  and  oowers  to  better  enable  them  to  sfovern 
themselves,  and  not  to  take  away  any  rights  they  possessed  before 
such  grant  was  made.  It  may  be  true  that  as  to  such  matters  as 
the  state  has  a  peculiar  interest  in,  different  from  that  relating  to 
other  communities,  it  may  by  proper  legislative  action  take  control 
of  such  interests ;  but  as  to  such  matters  as  are  purely  local,  and  con- 
cern only  the  peoi)le  of  that  community,  they  have  the  right  to  con- 
trol them,,  subject  only  to  the  general  laws  of  the  state,  which  af- 
fect all  the  people  of  the  state  alike.  The  construction  of  sewers  in 
a  city,  the  supply  of  gas,  water,  fire  protection,  and  many  other  mat- 
ters that  might  be  mentioned,  are  matters  in  which  the  local  com- 
munity alone  are  concerned,  and  in  which  the  state  has  no  special 
interest,  more  than  it  has  in  the  health  and  prosperity  of  the  people 
generally,  and  they  are  matters  over  which  the  people  afifected  there- 
by have  the  exclusive  control,  and  it  cannot,  in  our  opinion,  be  taken 
away  from  them  by  the  legislature. 

Municipal  corporations  are  to  be  regarded  in  a  two-fold  charac- 
ter— the  one  public,  as  regards  the  state  at  large,  in  so  far  as  they 
are  its  agents  for  government ;  the  other  private,  in  so  far  as  they  are 
to  provide  for  the  local  necessities  and  conveniences  for  their  own 
citizens ;  and,  as  to  the  acquisitions  they  make  in  the  latter  capacity 
as  mere  corporations,  it  is  neither  just,  nor  is  it  within  the  power  of 
the  legislature,  to  take  them  away,  or  to  deprive  the  local  commu- 
nity of  the  benefit  of  them.  People  v.  IIurll)ut.  24  Mich.  105,  9  Am. 
Rep.  103.  In  the  case  above  cited,  the  learned  judge  who  delivered 
the  opinion  said:  "We  must  never  forget,  in  studying  its  terms,  [the 
constitution]  that  most  of  them  had  a  settled  meaning  l)efore  its 
adoption.  Instead  of  being  the  source  of  our  laws  and  liberties,  it 
is,  in  the  main,  no  more  than  a  recognition  and  re-enactment  of  an 


8  CORPORATIONS — PUBLIC    AND   PRIVATE 

accepted  system.  The  rights  preserved  are  ancient  rights,  and  the 
municipal  bodies  recognized  in  it,  and  required  to  be  perpetuated, 
were  already  existing,  with  known  elements  and  functions.  They 
were  not  towns  or  counties  or  cities  or  villages  in  the  abstract,  or 
municipalities  which  had  lost  all  their  old  liberties  by  central  usur- 
pation, but  American  and  Michigan  municipalities,  of  common-law 
origin,  and  having  no  less  than  common-law  franchises.  So  far  as 
any  indication  can  be  found  in  the  constitution  of  1850  that  they 
were  to  be  changed  in  any  substantial  way,  the  change  indicated  is 
in  the  direction  of  increased  freedom  of  local  action,  and  a  decrease 
in   the   power   of    the    state  to    interfere    with    local    management." 

Again,  in  the  same  opinion,  this  language  is  used :  "Incorporat- 
ed cities  and  boroughs  have  always,  both  in  England  and  America, 
been  self-governing  communities,  within  such  scope  of  jurisdiction 
as  their  charters  vest  in  the  corporate  body.  According  to  the  doc- 
trine of  the  common  law,  a  corporation  aggregate  for  municipal  pur- 
poses is  nothing  more  nor  less  than  'investing  the  people  of  the 
place  with  the  local  government  thereof.'  In  the  absence  of  any 
provision  in  the  charter  creating  a  representative  common  council, 
the  whole  body  of  freemen  make  the  common  council,  and  act  for  the 
corporation  at  their  meetings.  It  is  agreed  by  historians  that  orig- 
inally all  boroughs  acted  in  popular  assembly,  and  that  the  select 
common  council  was  an  innovation,  which  may  have  been  of  con- 
venience or  by  encroachment.  In  modern  times,  cities  have  gener- 
ally acted  in  ordinary  matters  by  such  a  select  body ;  *  *  *  but, 
whether  acting  directly  or  by  their  representatives,  the  corporation 
is,  in  law,  the  community,  and  its  acts  are  their  acts  and  its  officers 
their  officers.  The  doctrine  is  elementary  that  all  corporation  offi- 
cers must  derive  office  from  the  corporation.  This  has  been  from 
time  immemorial  settled  law.  By  articles  15  and  16  of  the  Great 
Charter,  it  was  stipulated  that  the  liberties  and  free  customs  of  Lon- 
don, and  all  other  cities,  boroughs,  towns,  and  ports,  should  be  pre- 
served. Those  liberties  were  all  connected  with  and  dependent  up- 
on the  right  to  choose  their  own  officers,  and  regulate  their  own  lo- 
cal concerns.  *  *  *  Qur  constitution  cannot  be  understood  or 
carried  out  at  all  except  on  the  theory  of  local  self-government,  and 
the  intention  to  preserve  it  is  quite  apparent.  In  every  case  where 
provision  is  made  by  the  constitution  itself  for  local  officers,  they  are 
selected  by  local  action.  All  counties,  towns,  and  school-districts 
are  made  to  depend  upon  it." 

So  the  intention  to  preserve  local  self-government  is  apparent 
throughout  the  entire  scope  of  our  own  constitution.  By  section  2, 
art.  6,  county  officers  are  to  be  elected  by  the  people  at  the  general 
elections.  By  section  3,  art.  6,  such  other  county  and  township 
officers  as  may  be  necessary  are  to  be  elected  or  appointed  in  such 
manner  as  may  be  prescribed  by  law;  and  it  is  expressly  provided 


MUNICIPAL    CORPORATIONS — DISTINGUISHING    ELEMENTS  » 

that  "all  acts  of  incorporation  for  municipal  purposes  shall  continue 
in  force  under  this  constitution  until  such  time  as  the  general  as- 
sembly shall,  in  its  discretion,  modify  or  repeal  the  same."  It  is 
therefore  perfectly  apparent  from  the  constitution  itself  that  it  was 
framed  with  reference  to  the  then  existing  local  governments  of 
covinties,  towns,  townships,  and  cities.  Did  the  people,  then,  in  the 
adoption  of  the  constitution,  surrender  the  right  to  local  self-govern- 
ment which  they  at  that  time  possessed?  Judge  Cooky,  in  the  case 
above  cited,  said:  "The  state  may  mould  local  institutions  accord- 
ing to  its  views  of  policy  or  expediency,  but  local  government  is 
matter  of  absolute  right,  and  the  state  cannot  take  it  away.  It 
would  be  the  boldest  mockery  to  speak  of  a  city  as  possessing  munic- 
ipal liberty  where  the  state  not  only  shaped  its  government,  but  at 
discretion  sent  in  its  own  agents  to  administer  it;  or  to  call  that 
system  one  of  constitutional  freedom  under  which  it  should  be 
equally  admissible  to  allow  the  people  full  control  in  their  local  af- 
fairs or  no  control  at  all." 

Two  vears  later,  in  a  reconsideration  of  the  same  question  (Peo- 
ple V.  Detroit,  28  Mich.  243,  15  Am.  Rep.  202),  he  said:  "Conced- 
ing, as  we  already  have,  the  general  right  of  the  legislature  to  pre- 
scribe the  duties  and  authority  of  municipal  officers,  it  would  never- 
theless be  easy  to  demonstrate  that,  unless  there  are  some  limitations 
upon  that  right,  the  constitutional  guaranty  of  local  self-government 
would  be  without  meaning  or  value.  Many  things  might  be  sug- 
gested so  utterly  destructive  of  the  local  municipal  institutions  which 
have  been  handed  down  to  us  that  the  most  strenuous  advocate 
of  legislative  authority  would  admit  without  hesitation  that  they  were 
forbidden  by  the  constitution.  If  we  may  suppose,  for  illustration, 
that  the  legislature  shall  provide  that  in  Detroit  a  single  person  may 
be  chosen,  in  whom  may  be  vested  the  whole  legislative  authority 
of  the  city,  and  all  other  authority  pertaining  to  local  government, 
of  every  description  and  nature,  not  expressly  by  the  constitution 
confided  to  officers  specified,  it  would  require  unusual  boldness  in 
any  one  who  should  undertake  to  defend  such  a  local  dictatorship  as 
something  within  the  competency  of  legislation,  under  a  constitution 
avowedly  framed  to  guard,  protect,  and  defend  the  local  powers  and 
local  liberties." 

In  this  case  the  legislature  has  undertaken  to  place  in  the  hands 
of  three  men  the  exclusive  control  of  all  the  streets,  alleys,  lanes, 
thoroughfares,  bridges,  and  culverts  in  the  city  of  Indianapolis, 
without  the  consent  of  those  to  be  afifectcd  thereby,  with  lull  ])owcr 
to  improve,  alter,  or  change  the  same  in  any  manner  they  may 
choose,  with  the  exclusive  power  to  employ  all  the  assistance  they 
may  desire,  including  legal  counsel,  and  fix  llicir  salaries  and  com- 
pensation in  such  sum  as  they,  in  their  unrestrained  judgment,  may 
think  proper,  without  any  accountability  to  any  one.     Not  only  that, 


10  CORPORATIONS — PUBLIC   AND   PRIVATE 

but  these  three  men  are  given  absolute  and  exchisive  control  over 
the  construction  of  all  sewers,  the  water  supply,  and  supply  of 
lights,  with  no  voice  in  the  matter  left  to  the  people  of  the  city.  If 
the  legislature  may  put  these  matters  in  the  hands  of  three  men,  why 
not  in  the  hands  of  one  man?  and,  if  they  may  transfer  these  mat- 
ters, why  may  they  not  transfer  others?  In  other  words,  the  effort 
is  by  this  act  to,  take  from  the  city  all  control  over  the  improve- 
ments of  the  city,  without  the  consent  of  her  people,  and  place  it  iri 
the  hands  of  the  agents  of  the  state,  chosen  by  the  legislature,  and 
charge  the  people  of  the  city  with  the  whole  expense.  We  do  not 
think  that  the  people  have  conferred  upon  the  legislature  any  such 
power.  It  is  subversive  of  all  local  self-government,— a  right  that 
the  people  did  not  surrender  when  they  adopted  the  constitution. 
They  still  retained,  after  the  adoption  of  that  instrument,  the  right  to 
select  their  own  local  olificers,  and  every  effort  to  deprive  them 
of  such  right  must  be  held  to  be  beyond  the  power  of  the  legislature. 
In  our  opinion,  the  entire  act  attempting  to  create  a  board  of  pub- 
lic works  and  affairs  for  cities  having  a  population  of  50,000  or 
more  is  in  conflict  with  the  constitution,  and  is  void. 

In  coming  to  this  conclusion  we  have  not  been  unmindful  of  the 
fact  that  authorities  are  to  be  found  which  would  seem  to  lead  to 
a  different  conclusion,  but  the  authorities  upon  which  we  rely  seem 
to  be  based  upon  the  better  reason.  In  support  of  the  conclusion 
reached  in  this  case,  we  cite:  People  v.  Albertson,  55  N.  Y.  50; 
People  V.  Hurlbut,  24  Mich.  44,  9  Am.  Rep.  103 ;  People  v.  Detroit, 
28  Mich.  228,  15  Am.  Rep.  202;  People  v.  Lynch,  51  Cal.  15,  21 
Am.  Rep.  677. 

We  are  asked  to  decide  other  questions  in  the  case  involving  the 
validity  of  the  act  in  question,  but  as  we  have  reached  the  conclu- 
sion that  it  is  void,  as  being  in  conflict  with  the  constitution,  we  do 
not  deem  it  necessary  to  extend  this  opinion.  We  find  no  error 
in  the  record  for  which  the  judgment  of  the  superior  court  should  be 
reversed.     Judgment  affirmed. 

EivUOTT,  C.  J.  *  *  *  Another  element  deserves  considera- 
tion here,  and  that  is  this:  The  municipal  corporation,  as  a  local 
government,  is  not  represented  by  the  general  assembly,  and  to  per- 
mit that  body  to  designate  the  officers  who  shall  govern  local  af- 
fairs would  be  to  tax  the  citizens  of  the  corporation  without  repre- 
sentation. This,  it  is  hardly  necessary  to  say,  would  violate  the 
principle  which  lies  at  the  foundation  of  free  government.  It  is  no 
answer  to  say,  as  is  sometimes  said,  that  the  municipal  corporation 
has  representatives  in  the  general  assembly;  for  a  municipal  corpo- 
ration is  not,  as  to  its  local  affairs,  represented  by  that  body,  for 
that  body  represents  the  state  and  legislates  in  state  affairs.  Inci- 
dentally, it  legislates  in  a  general  way  for  localities,  but  only  because 
the  welfare  of  the  whole  state  is  thereby  promoted.     As  a  part  of 


MUNICIPAL   COEPORATIONS — DISTINGUISHING    ELEMENTS  11 

the  constituency  of  the  legislature,  the  citizens  of  a  town  or  city  are 
represented,  but  they  are  represented  in  the  capacity  of  citizens  of 
the  state,  and  not  as  the  inhabitants  of  a  municipal  corporation.  A 
town  or  city  has  but  little  power  in  any  general  assembly,  and  to 
permit  that  body  to  control  their  local  affairs  would  put  them  in 
charge  of  men  from  distant  parts  of  the  state  who  could  have  little, 
if  any,  knowledge  of  local  afifairs,  and  no  direct  interest  in  them,  so 
that  the  inhabitants  of  such  a  town  or  city  would  be  governed  by 
persons  who  did  not,  and  who  could  not,  in  the  just  sense  of  the 
term,  represent  them ;  and  this  result  our  constitution  will  not  toler- 
ate. 

I  do  not  deny  that  the  legislature  has  the  power  to  change  the 
form  and  mode  in  which  municipal  corporations  shall  be  governed. 
On  the  contrary,  I  affirm  that,  without  the  consent  of  the  inhabi- 
tants, the  form  of  the  corporate  government  may  at  any  time  be 
altered ;  but  I  do  deny  that  the  legislature  has  the  power  to  deprive 
the  electors  of  a  municipal  corporation  of  the  right  to  choose  their 
own  immediate  local  officers.  By  immediate  local  officers  I  mean 
such  as  are  charged  with  the  control  of  purely  local  concerns ;  as 
the  streets,  the  fire  apparatus,  and  the  like  matters.  In  the  class  of 
local  officers,  I  do  not  include  the  peace-keeping  officers,  or  the  con- 
stabulary, for  such  officers  are,  in  reality,  officers  of  the  state, — 
such  as  it  is  the  duty  of  the  state  to  provide  for  the  personal  safety 
of  its  citizens  on  the  thronged  streets  of  a  great  city,  as  well  as  on 
the  secluded  rural  highways.  What  I  affirm,  in  short,  is  this:  That 
because  an  elector  lives  in  a  city  he  cannot  have  the  right  to  vote 
upon  purely  local  afifairs  taken  from  him  by  any  statute.  The  de- 
cisions which  declare  that  the  state  may  appoint  peace-officers  in 
cities  can  be  sustained  only  upon  the  ground  that  such  officers  are 
state  officers,  and  not  local  officers.  The  principle  is  one  not  to  be 
extended,  but  to  be  limited.     *     *     * 


12  CREATIOM    OF   MUNICIPAL    COIIPORATIONS 


CREATION  OF  MUNICIPAL  CORPORATIONS 

I.  Power  to  Create  Municipal  Corporations — Delegation  of 

Power  ^ 


STATE  ex  rel.  LULY  v.  SIMONS. 
(Supreme  Court  of  Minnesota,  1884.    32  Minn.  540,  21  N.  W.  750.) 

Mitchell,  J.-  This  is  an  application  for  a  writ  of  prohibition  to 
restrain  the  respondent,  a  judge  of  the  district  court,  from  further 
action  in  proceedings  now  pending  before  him  for  the  incorporation 
of  certain  territory  as  a  village  under  the  provisions  of  chapter  TZ, 
Gen.  Laws  1883.  The  contention  of  the  relator  is  that  the  act  referred 
to  is  unconstitutional,  because  it  assumes  to  delegate  purely  legislative 
powers  to  the  district  courts  or  the  judges  thereof. 

Section  3  of  this  act  provides  that  any  district,  sections,  or  parts  of 
sections  which  have  been  duly  surveyed  and  platted  into  lots  and 
blocks,  and  lands  adjacent  thereto,  which  said  plat  has  been  duly  and 
legally  certified  and  filed,  may  become  incorporated  as  a  village  in  the 
following  manner,  upon  application  to  the  judge  of  the  district  court 
of  the  county  in  which  such  lands  are  situated.  Section  4  provides 
that  this  application  shall  be  by  petition  of  at  least  25  electors — resi- 
dents upon  the  lands  to  be  incorporated — setting  forth  the  boundaries 
of  such  territory,  the  quantity  of  land  embraced  therein,  the  name  of 
such  village,  and  the  resident  population,  as  near  as  may  be.  Section 
5  provides  for  the  posting  of  copies  of  such  petition,  and  of  notices  of 
the  time  and  place  when  and  where  it  will  be  presented  to  the  court. 
Section  6  provides  that  at  the  time  and  place  fixed  in  said  notice,  upon 
the  fiHng  of  the  petition  and  proof  of  posting  as  aforesaid,  and  the 
map  or  plat  of  said  premises,  the  court  may  proceed  to  hear  proofs  for 
or  against  the  corporation  of  said  village,  and  upon  such  hearing  may 
take  such  evidence  as  he  shall  deem  necessary.  Section  7  provides,  if 
the  court,  after  such  hearing,  shall  be  satisfied  of  the  correctness  of 
such  survey  and  of  the  legality  of  such  plat,  and  that  all  of  the  re- 
quirements of  the  statute  have  been  complied  with,  that  the  lands  em- 
braced in  such  petition  ought  justly  to  be  included  in  such  village,  that 
the  interests  of  the  inhabitants  will  be  promoted  thereby,  it  shall  make 
an  order  declaring  that  such  territory,  the  boundaries  of  which  shall  be 
therein  set  forth  by  metes  and  bounds,  and  which  may  be  enlarged  or 
diminished  by  such  court  from  the  boundaries  specified  in  said  applica- 

1  For  discussion  of  principles,  see  Cooley  on  Municipal  Corporations,  §§ 
8-10. 

2  Part  of  the  opinion  is  omitted. 


POWER  TO  CREATE — DELEGATION  OF  POWER  13 

tion  as  justice  may  require,  shall  be  an  incorporated  village  by  the 
name  specified  in  said  application,  and  in  such  order  it  shall  designate 
three  persons — electors  residing  on  said  territory — whose  duty  it 
shall  be  to  give  notice  of  an  election  in  said  incorporated  village,  as 
provided  by  section  10  of  this  act.  Section  8  requires  that  such  peti- 
tion and  order  shall  be  filed  in  the  office  of  the  clerk  of  the  court,  and 
that  he  shall  forthwith  notify  the  persons  designated  in  said  order  of 
the  filing  thereof,  and  that  a  certified  copy  thereof  shall  be  filed  in  the 
office  of  the  register  of  deeds,  and  be  by  him  recorded,  and  thereupon 
said  village  shall  be  duly  incorporated  by  the  name  designated  in  said 
order.  Section  9  provides  that  any  district  which  may  be  set  apart 
by  an  order  of  the  district  court,  and  shall  organize  as  such  municipal 
corporation  by  the  action  of  the  inhabitants  thereof  in  the  manner  and 
form  hereafter  provided,  shall  be  endowed  with  all  the  powers  in- 
cident to  municipal  corporations.  Section  10  requires  the  three  per- 
sons designated  for  that  purpose  in  the  order  of  the  court,  to  give 
notice  to  the  electors  to  meet  to  organize  under  the  provisions  of  the 
act,  and  to  elect  officers  for  the  ensuing  year.  It  also  provides  for  the 
manner  of  holding  and  conducting  such  elections. 

It  will  be  observed  that  under  the  provisions  of  this  act  the  legis- 
lature has  not,  except  as  to  certain  preliminaries,  determined  or  de- 
fined the  facts  or  things  upon  the  existence  of  which  the  territory  shall 
be  incorporated  as  a  village.  It  will  also  be  observed  that  the  duty 
of  the  court  is  not  simply  to  inquire  and  ascertain  whether  certain 
specified  facts  exist,  or  whether  certain  specified  conditions  have  been 
complied  with,  but  to  proceed  and  determine  whether  the  interests  of 
the  inhabitants  will  be  promoted  by  the  incorporation  of  the  village, 
and,  if  so,  what  land  ought  in  justice  to  be  included  within  its  limits. 
In  short,  it  is  left  to  the  court  to  decide  whether  public  interests  will 
be  subserved  by  creating  a  municipal  corporation,  and  the  determina- 
tion of  this  question  is  left  wholly  to  his  views  of  expediency  and  pub- 
lic policy.  That  the  determination  of  such  question  involves  the  ex- 
ercise of  purely  and  exclusively  legislative  power  seems  to  us  too  clear 
to  admit  of  argument.  The  granting  of  all  charters  of  incorporation 
involves  the  exercise  of  legislative  functions.  The  proposition  (says 
Dillon)  which  lies  at  the  foundation  of  the  laws  of  corporations  of 
the  country  is  that  they  all,  public  or  private,  exist  and  can  exist  only 
by  virtue  of  express  legislative  enactment  creating  or  authorizing  the 
creation  of  the  corj^oratc  body. 

All  municipal  corporations  are  mere  auxiliaries  to  the  state  govern- 
ment in  the  business  of  municipal  rule,  'i'he  act  of  deciding  when  and 
under  what  circumstances  the  public  interests  require  the  creation  of 
these  auxiliaries  or  aids  to  the  stale  government  is  one  of  the  highest 
and  most  important  legislative  powers  and  duties.  ])y  section  1,  art. 
4,  of  the  constitution  of  the  state,  the  legislative  department  of  the 
government  is  made  to  consist  of  a  senate  and  house  of  representa- 


IJ:  CREATION    OF    MUNICIPAL    CORPORATIONS 

tives.  In  them  all  legislative  power  is  exclusively  vested.  One  of  the 
settled  maxims  of  constitutional  lav^  is  that  legislative  powers  cannot 
be  delegated.  Where  the  constitution  has  located  the  law  making 
power  it  must  remain.  The  department  to  whose  judgment  and 
wisdom  it  has  been  intrusted  cannot  abdicate  this  power  and  relieve 
itself  of  the  responsibility  by  choosing  other  agencies  upon  whom  it 
shall  be  devolved.    Cooley,  Const.  Law,  139. 

As  said  by  this  court  in  State  v.  Young,  29  Minn.  551,  9  N.  W. 
7Z7,  it  is  a  principle  not  questioned  that,  except  when  authorized  by 
the  constitution,  as  in  respect  to  municipal  corporations,  the  legis- 
lature cannot  delegate  legislative  power.  The  power  of  local  legisla- 
tion commonly  bestowed  on  municipal  corporations  does  not  trench 
upon  the  maxim,  since  this  is  authorized,  impliedly  at  least,  by  the  con- 
stitution itself ;  and  the  maxim  itself  is  to  be  understood  in  the  light 
of  an  immemorial  practice  which  has  always  recognized  the  policy  and 
propriety  of  vesting  in  such  corporations  these  powers.  As  before 
remarked,  municipal  corporations  are  created  for  this  purpose,  as  aid 
to  the  state  government  in  the  business  of  municipal  rule.  Cooley, 
Const.  Law,  140.  Had  the  legislature,  by  the  act  in  question,  fixed 
and  specified  all  the  conditions  and  facts  upon  which  the  incorporation 
of  certain  territory  should  depend,  we  do  not  question  their  right  to 
refer  to  some  tribunal  or  body  the  question  of  ascertaining  and  de- 
termining the  existence  of  these  facts  and  conditions.  Neither  do  we 
decide  that  they  might  not  delegate  certain  legislative  powers  regard- 
ing the  organization  and  incorporation  of  villages  to  some  appropriate 
municipal  body  which  might  constitutionally  exercise  local  legislative 
powers.  The  delegation  of  certain  powers  of  local  legislation  to  mu- 
nicipal bodies,  for  reasons  already  suggested,  is  permissible.  Boards 
of  county  commissioners  are  already,  under  certain  limitations,  in- 
vested with  somewhat  similar  powers  in  the  organization  and  change 
of  boundaries  of  towns  and  school  districts.  But  the  present  act  as- 
sumes to  delegate  these  legislative  powers  to  the  district  court — a 
tribunal  not  authorized  to  exercise  them,  its  jurisdiction  under  the 
constitution  being  purely  judicial. 

Cases  may  be  found  where  it  has  been  held  that  powers  similar  to 
those  conferred  by  this  act  were  properly  delegated  to  certain  so- 
called  courts,  but  we  think  it  will  be  found  in  almost  every  instance 
that  these  courts  were  not  exclusively  judicial,  but  also  quasi  municipal 
bodies  invested  with  certain  powers  of  local  legislation.  Such  are  the 
county  courts  in  some  states,  which  take  the  place  of  our  boards  of 
county  commissioners  in  the  municipal  government  of  the  county. 
*     *     *     Let  the  writ  issue. 


LEGISLATIVE   DISCRETION 


II.  Legislative  Discretion  ' 


15 


BERLIN  V.  GORHAM. 

(Supreme  Court  of  Xew  Hampshire,  1856.  34  N.  H.  266.) 
Assumpsit,  to  recover  for  supplies  furnished  for  the  support  of 
Jeremiah  Harding,  and  his  wife,  Nancy  Harding,  alleged  to  be  pau- 
pers having  their  settlement  in  Gorham.  The  plaintiffs  gave  evidence 
that  when  Gorham  was  incorporated,  on  the  18th  of  June,  1836,  Jere- 
miah Harding  resided  and  had  his  home  in  the  place  which  was  incor- 
porated into  that  town.  The  court  ruled  that  if  he  so  resided,  he 
would  thereby  gain  a  settlement  in  Gorham,  although  no  legal  town 
meeting  was  holden,  and  though  no  town  officers  were  chosen,  before 
his  removal.  The  defendant  excepted  to  the  foregoing  ruling,  and 
moved  that  the  verdict  returned  for  the  plaintiffs  be  set  aside. 

Bell,  J.*  By  the  statute  of  1828  (Laws  Ed.  1830,  p.  301),  re- 
lating to  the  settlement  of  paupers,  which  is  re-enacted  without  ma- 
terial change  in  the  Revised  Statutes,  c.  65,  §  1,  cl.  6  (Comp.  Stat. 
157),  "all  persons,  dwelling  and  having  their  homes  in  any  unincorpo- 
rated place  at  the  time  when  the  same  shall  be  incorporated  into  a 
town,  shall  thereby  gain  a  settlement  therein."  It  was  objected  that 
to  make  an  incorporation  of  a  town  effectual,  there  must  be  a  legal 
town  meeting  holden  in  it ;  and  as  the  pauper,  though  he  resided  in 
the  town  at  the  passage  of  the  act,  removed  before  any  meeting  was 
holden,  he  did  not  gain  a  settlement.  This  objection  rests  upon  the 
idea  that  the  rule  which  applies  in  the  case  of  private  corporations, 
that  the  act  is  ineft'ectual,  until  it  is  accepted  by  the  corporators,  gov- 
erns also  the  case  of  public  corporations  like  towns.  See  A.  &  A.  on 
Corporations,  68. 

But  there  is  no  such  rule  in  the  case  of  public  corporations  of  a 
municipal  character.  The  acts  of  incorporation  are  imperative  upon 
all  who  come  within  their  scope.  Nothing  depends  upon  consent,  un- 
less the  act  is  expressly  made  conditional.  No  man  who  lives  upon 
the  incorporated  district  can  withdraw  from  the  corporation,  unless 
by  a  removal  from  the  town  ;  and  by  the  mere  passage  of  the  law  the 
town  is  completely  constituted,  entitled  to  the  rights  and  subjected  to 
the  duties  and  burdens  of  a  town,  whether  the  inhabitants  are  pleased 
or  displeased.  The  legislature  has  entire  control  over  municipal  cor- 
porations, to  create,  change,  or  destroy  tlKin  at  pleasure,  and  they  are 
absolutely  created  by  the  act  of  incorporation,  without  the  acceptance 
of  the  people,  or  any  act  on  their  part,  unless  otherwise  provided  by 
the  act  itself.     Vq()\)\c  v.  Wren,  4  Scam.  (111.)  269;  Warren  v.  Mayor, 

a  For  discussion  of  prlnc-lploH,  see  Cooley,  Mtni.  Corp.  §  11. 

♦  The  Btatemeut  of  fucLs  Is  rewritten  and  part  of  the  opinion  is  omitted. 


16  CREATION    OP   MUNICIPAL    CORrORATIONS 

etc.  of  Charlestown,  2  Gray  (Mass.)  104;  Mills  v.  Williams,  33  N.  C. 
558;  State  v.  Curran,  12  Ark.  321 ;  Fire  Department  v.  Kip,  10  Wend. 
(N.  Y.)  267;  People  v.  Morris,  13  Wend.  (N.  Y.)  337.  *  *  * 
Judgment  on  the  verdict. 


III.  Legislative  Power — How  Exercised  ' 
1.  Se:i.f-Chartere;d  Cities 


STATE  ex  rel.  GETCHELL  v.  O'CONNOR. 

(Supreme  Court  of  Minnesota,  1900.    81  Minn.  79,  S3  N.  W.  498.) 

Quo  warranto  by  the  state,  on  the  relation  of  P.  L.  Getchell,  against 
John  J.  O'Connor. 

Brown,  J.  Quo  warranto  proceedings  to  determine  the  right 
of  respondent  to  the  office  of  chief  of  police  of  the  city  of  St. 
Paul.  The  important  question  in  the  case  is  the  constitutionality  of 
chapter  351,  Gen.  Laws  1899,  the  same  being  an  act  to  authorize 
cities  and  villages  to  frame  their  own  charters.  Pursuant  to  this  act 
due  proceedings  were  had  by  the  city  of  St.  Paul,  and  a  charter 
framed  and  adopted  as  provided  thereby,  under  the  provisions  of 
which  respondent  was  appointed  chief  of  police.  Relator  held  the 
office  at  the  time  of  the  adoption  of  the  new  charter  and  the  appoint- 
ment of  respondent,  and  disputes  and  contests  the  right  of  the  latter 
to  the  office  on  the  ground  that  the  act  of  the  legislature  aforesaid 
is  unconstitutional  and  void,  in  consequence  of  which  the  new  char- 
ter is  a  nullity.  We  come  directly  to  the  main  question,  without  fur- 
ther statement  as  to  the  rights  of  the  respective  parties  to  the  office 
in  question. 

Chapter  351,  Gen.  Laws  1899,  pursuant  to  which  the  new  charter 
of  St.  Paul  was  framed,  was  passed  and  enacted  under  section  36  of 
article  4  of  the  constitution  of  the  state,  as  amended  in  1897.  The 
relator  assails  the  constitutionality  of  the  act  of  the  legislature  on 
two  grounds:  (1)  That  it  is  unconstitutional  and  void  because  made 
to  apply  to  cities  in  existence  when  the  constitutional  amendment  was 
adopted,  only;  (2)  that  it  is  void  because  it  fails  to  provide  general 
limits  within  which  to  frame  charters  authorized  thereby.  The  sec- 
tion of  the  constitution,  so  far  as  applicable  to  relator's  first  objec- 
tion, reads  as  follows:  "Sec.  36.  Any  city  or  village  in  this  state 
may  frame  a  charter  for  its  own  government  as  a  city  consistent  with 
and  subject  to  the  laws  of  this  state,  as  follows :  *  *  *  "  The 
act  of  the  legislature,  so  far  as  here  pertinent,  reads :  "Section  1.  Any 

6  For  discussion  of  principles,  see  Cooley,  Mun.  Corp.  §  12. 


LEGISLATIVE   POWEK — HOW    EXERCISED  17 

city  incorporated  prior  to  the  adoption  of  the  constitutional  amend- 
ment allowing  cities  already  incorporated,  and  villages  desiring  to 
be  incorporated  as  cities,  to  frame  their  own  charter  as  cities,  *  *  * 
and  any  village  in  the  state  of  Minnesota  desiring  to  be  incorporated 
as  a  city,  may  frame  a  charter  for  its  own  government  as  a  city  as 
hereinafter  provided." 

It  is  the  contention  of  relator  that  this  act  is  void  because  limited 
and  restricted  to  cities  incorporated  prior  to  the  constitutional  amend- 
ment, when,  as  he  claims,  the  constitution  applies  to  all  cities,  when- 
ever incorporated.  If  this  contention  is  sound,  the  charter  must  fall. 
It  is  sound  if  we  read  and  construe  section  36  of  the  constitution 
literally.  Its  language  is  that  all  cities  may  frame  charters,  while  the 
act  of  the  legislature  provides  that  all  cities  incorporated  prior  to  a 
given  date  may  do  so.  Unless  this  limitation  is  warranted  and  jus- 
tified by  a  proper  construction  of  the  constitution,  the  act  must  be 
declared  void  as  special  legislation.  Respondent  contends  that  the 
title  to  the  act  of  the  legislature  proposing  and  submitting  section 
36  to  the  people  as  a  constitutional  amendment  may  be  referred  to 
in  determining  the  jntent  of  the  legislature  and  of  the  people  in 
adopting  the  amendment. 

The  title  to  the  act  proposing  the  amendment  to  the  constitution 
reads  as  follows :  "An  act  proposing  an  amendment  to  section  36 
of  article  4  of  the  constitution  of  the  state  of  Minnesota,  allowing 
cities  already  incorporated  and  villages  desiring  to  be  incorporated 
as  cities,  to  frame  their  own  charter  as  cities,  and  classifying  cities 
for  the  purpose  of  general  legislation."  The  body  of  the  act,  the  sec- 
tion of  the  constitution  as  proposed  to  be  amended,  provides  that  any 
city  or  village  may  frame  a  charter  for  its  own  government,  and  the 
authority  there  confined  is  not  confined  or  limited  to  those  already 
incorporated.  That  the  amended  constitution  was  intended  to  apply 
to  cities  having  an  incorporated  existence  at  the  time  of  its  adoption 
seems  very  clear  to  us. 

In  determining  the  intent  of  the  amendment,  reference  may  be  had 
to  the  conditions  surrounding  the  government  of  municipalities,  and 
the  history  of  general  legislation  with  respect  thereto.  Holy  Trinity 
Church  v.  U.  S.,  143  U.  S.  459,  12  Sup.  Ct.  511,  36  L.  Ed.  226;  U.  S. 
V.  Union  Pac.  R.  Co.,  91  U.  S.  79,  23  L.  Ed.  224;  Croomes  v.  State, 
40  Tex.  Cr.  R.  672,  51  S.  W.  927,  53  S.  W.  882.  By  a  constitutional 
amendment  in  1891,  special  legislation  as  to  cities  and  villages  was 
wholly  prohibited.  Thereafter  all  incorporated  cities,  and  villages  were 
limited  in  the  conduct  and  management  of  municipal  affairs  to  the 
power  and  authority  theretofore  contained  in  and  conferred  liy  their 
charters,  to  which  no  amendments  or  additions  could  be  made.  The 
result  of  this  was  to  hamper  anrl  embarrass  such  cities  and  villages  in 
the  conduct  of  their  affairs.  I-'xigcncies  and  new  conditions  arose, 
CooLEY  Cases  Mun.C— 2 


18  CREATION    OF    MUNICIPAL    CORPORATIONS 

which  demanded  and  required  the  exercise  of  greater  power  than  was 
conferred  upon  them ;  but  the  legislature  was  powerless  to  act,  except 
perhaps  by  general  legislation,  which  was  impracticable,  because  of 
the  varied  interests,  duties,  and  responsibilities  of  different  cities.  The 
constitution  prohibited  granting  any  further  privileges  to  such  cities, 
and  as  a  consequence  the  administration  of  public  affairs  thus  became 
very  much  embarrassed  and  involved.  To  obviate  all  these  difficulties, 
and  to  place  such  cities  on  a  broader  basis,  and  in  a  position  prepared 
to  meet  and  deal  with  new  conditions  sure  to  follow  their  advancement 
and  growth,  it  was  deemed  wise  and  advisable  to  authorize  them  to 
frame  and  adopt  their  own  charters.  Cities  in  existence  at  this  time 
were  for  the  most  part  incorporated  by  special  charters,  and,  by  rea- 
son of  the  constitutional  amendment  of  1891,  were  absolutely  helpless 
when  confronted  with  new  conditions  requiring  the  exercise  of  addi- 
tional power ;  and  no  doubt  the  legislature  had  this  in  mind,  and  in- 
tended the  amendment  of  1898  to. relieve  them,  and  to  extend  the 
same  privilege  to  all  villages,  whether  then  or  thereafter  to  be  incor- 
porated. 

Under  this  construction  there  is  little  difficulty  to  be  apprehended 
from  the  suggestion  that  cities  may  hereafter  be  created  under  the 
general  laws  of  the  state,  and  will  be  without  remedy  under  this  law, 
because  not  incorporated  before  its  passage.  As  a  rule,  incorporated 
municipalities  begin  their  existence  as  villages,  and,  as  they  grow  in 
population  and  importance,  changed  conditions  and  new  responsibili- 
ties require  an  advancement  to  the  higher  and  greater  powers  incident 
to  cities,  and  the  village  is  changed  and  incorporated  as  a  city.  No 
city  can  be  created  by  special  charter,  and  it  will  be  a  very  easy  mat- 
ter for  the  inhabitants  of  all  villages  or  of  any  locality,  desiring  to 
become  incorporated  as  cities,  to  proceed  under  the  constitution  and 
law  here  under  consideration,  and  thus  come  into  existence  as  cities 
under  a  homemade  charter,  and  enjoy  all  the  privileges  conferred  by 
the  act.  We  cannot  presume,  for  the  purpose  of  defeating  the  act, 
that  some  locality  may  at  some  time  in  the  future  come  into  existence 
as  a  city  under  the  general  laws. 

In  view  of  all  these  considerations,  and  construing  the  amended 
constitution  in  this  light,  and  in  connection  with  the  title  appended 
thereto  by  the  legislature,  we  have  no  hesitation  in  holding  that  the 
intention  of  the  legislature  and  of  the  people  in  adopting  and  ratifying 
it  was  to  limit  the  application  of  the  amended  constitution  to  incorpo- 
rated cities  then  in  existence.  It  is  true  that  no  title  is  required  to  a 
proposed  constitutional  amendment.  Such  an  amendment  may  be  pro- 
posed to  the  people  by  joint  resolution  of  the  legislature.  Julius  v. 
Callahan,  63  Minn.  154,  65  N.  W.  267.  But  such  title  may  be  looked 
to  nevertheless  for  the  purpose  of  ascertaining  the  intent  of  the  law. 
This  is  a  universal  rule,  and  applies  where  no  title  is  required.  Wil- 
son V.  Spaulding  (C.  C.)  19  Fed.  304 ;   U.  S.  v.  Carbery,  2  Cranch,  C. 


LEGISLATIVE    POWER — HOW    EXERCISED  19 

C.  358,  Fed.  Cas.  No.  14,720;  Clark  v.  Mayor,  etc.,  29  Md.  285;  U. 
S.  V.  Palmer,  3  Wheat.  610,  4  L.  Ed.  471 ;  Page  v.  Young,  106  Mass. 
313.  It  follows  that  the  act  in  question  is  not  in  violation  of  the  con- 
stitution, but  in  strict  accord  therewith. 

Relator's  second  contention  is  that  the  act  is  void  because  no  limits 
are  prescribed  within  which  to  frame  the  charters  thereby  authorized. 
The  section  of  the  constitution  in  question  provides  that  "before  any 
city  shall  incorporate  under  this  act  the  legislature  shall  prescribe  by 
law  the  general  limits  within  which  such  charters  shall  be  framed." 
The  contention  is  that  the  provision  is  mandatory,  and  requires  the 
legislature  to  prescribe  general  and  uniform  limits  or  a  broad  frame- 
work on  each  topic  to  which  the  charter  may  relate,  prescribing  in  de- 
tail the  powers  and  authority  within  which  the  charter  must  be 
framed. 

We  cannot  concur  in  this  view.  To  adopt  it  would  wholly  nullify 
the  purposes  intended  to  be  subserved  and  secured  by  the  constitution. 
A  ''broad  framework  for  each  topic"  pertaining  to  a  city  charter 
would  in  itself  be  a  charter,  and  render  the  act  of  the  city  in  framing 
one  nothing  more  than  adopting  therefor  the  legislative  grant  of  pow- 
er, and,  instead  of  exercising  the  right  to  "frame  their  own  charter," 
they  would  be  confined  to  what  the  legislature  saw  fit  to  grant  them, 
and  nothing  more.  The  general  power  and  authority  to  frame  city 
charters  is  granted  by  the  constitutional  amendment,  and  ex  necessitate 
extends  to  all  powers  properly  belonging  to  the  government  of  mu- 
nicipalities, and  the  requirement  that  the  legislature  shall  prescribe 
limits  within  which  such  charter  may  be  framed  must  be  construed 
to  mean  limits  beyond  which  the  charter  may  not  go.  In  other  words, 
it  is  thus  made  the  duty  of  the  legislature  to  provide  such  general  lim- 
itations and  restrictions  as  that  body  may  deem  expedient  and  proper. 
No  other  interpretation  can  be  placed  on  this  provision,  consistent  with 
the  plain  and  obvious  purpose  and  intent  of  the  legislature  and  people 
in  adopting  the  constitutional  amendment  of  which  it  is  a  part.  In 
obedience  to  the  requirements  of  the  constitution,  the  legislature  in- 
corporated in  the  act  in  question  certain  specified  limitations  and  re- 
strictions upon  certain  subjects,  and  it  is  not  for  the  court  to  say  that 
other  and  further  limits  or  restrictions  should  have  been  imposed. 
There  was  a  sufficient  compliance  with  the  constitution  in  this  respect. 

It  follows  that  the  act  is  not  open  to  the  objections  made  against 
it,  and  is  valid  and  constitutional.  Other  questions  argued  by  counsel 
do  not  require  further  mention.  There  is  no  doubt  as  to  the  right  of 
the  respondent  to  the  office  in  cjucstion.  He  was  appointed  thereto  bv 
the  board  of  police  commissioners  created  by  the  new  charter,  and 
has  duly  qualified.  Section  6  of  chapter  7  of  the  new  charter  provides 
that  "all  officers,  employes,  and  members  of  the  police  force  and  de- 
partment of  said  city  of  St.  Paul,  at  the  time  when  this  charter  be- 
comes effective,  shall  continue  to  hold  their  several  offices   until    re- 


20  CREATION    OF    MUNICIPAL    CORPORATIONS 

moved  by  said  board ;  and  all  orders,  rules  and  regulations  applicable 
to  said  police  force  and  department  and  in  force  at  said  time  shall 
continue  in  force  until  otherwise  provided  by  said  board." 

Relator  contends  that  by  the  adoption  of  the  new  charter  he  became 
an  officer  thereunder,  and  could  only  be  removed  in  the  manner  and 
for  the  reasons  specified  therein  for  the  removal  of  officers.  This  con- 
tention is  not  sound.  He  was  not  an  officer  under  the  new  charter,  but 
was  subject  to  the  rules  and  regulations  applicable  to  his  office  under 
the  old  charter,  and  under  the  provisions  of  the  new  charter  above 
quoted,  and  section  16  of  chapter  23,  could  be  superseded  by  an  ap- 
pointment of  another  person  by  the  police  board,  and  has  no  right  to 
insist  that  he  could  be  removed  for  cause  only.    Writ  quashed. 


IV.  Territory  and  Population « 


STATE  ex  rel.  YOUNG,  Atty.  Gen.,  v.  VILLAGE  OF  GILBERT. 
(Supreme  Court  of  Minnesota,  1909.     107  Minn.  364,  120  N.  W.  528.) 

Quo  warranto  by  the  State,  on  the  relation  of  E.  T.  Young,  At- 
torney General,  against  the  Village  of  Gilbert  and  others. 

Lewis,  J.^     This  was  a  proceeding  in  quo  warranto  to  test  the 
validity  of  the  incorporation  of  the  village  of  Gilbert.     *     *     *     The 
territory  includes  2,240  acres,  located  in  the  mining  district  of  the 
Mesaba  Range,  St.  Louis  county.     The  entire  tract,  except  as  herein- 
after stated,  consists  of  wild,  unimproved,  cut-over  lands,   not   spe- 
cially suitable  for  agricultural  purposes,  and  not  inhabited.     The  plat- 
ted portion  consists  of  80  acres,  upon  which  98  people  resided.     The 
Petit  mine  is  located  upon  the  S.  W.  40  of  section  24,  and  the  N. 
W.  40  of  section  25,  in  which  locality  183  people  resided.    The  Hobart 
mine  is  located  upon  the  E.  i/o  of  the  N.  W.  Ya  of  section  25,  upon 
which  84  people  resided.    The  La  Belle  mine  consisted  of  the  N.  W. 
14  of  the  N.  E.  Ya  of  section  24,  upon  which  68  people  resided.    There 
was  another  mine  located  upon  the  W.  1/2  of  the  S.  E.  34  of  section 
24,  but  the  pleadings  do  not  disclose  the  number  of  inhabitants  re- 
siding in  that  vicinity.     On  the  40-acre  tract  in  section  26,  immedi- 
itely  south  of  and  adjoining  the  platted  portion,  288  people  resided, 
and   on   the   easterly   portion   of    section   26   there  resided   200  peo- 
ple.    *     *     * 

The  alleged  attempt  to  incorporate  the  village  was  begun  m  the 
spring  of  1908,  and  according  to  the  answer  a  schoolhouse  is  being 

6  For  discussion  of  principles,  see  Cooley,  Mun.  Corp.  §  13. 

7  Part  of  the  opinion  is  omitted. 


TERRITORY  AND  POPULATION  21 

erected  on  the  platted  portion  at  a  cost  of  $60,000,  streets  have  been 
improved  at  an  expense  of  about  $4,500,  and  a  lock-up  built  at  a  cost 
of  $2,000.  Streets  have  been  laid  out  and  graded,  and  sidewalks 
constructed.  The  village  is  a  growing  community,  with  stores  and 
a  telephone  system ;  and  an  indebtedness  of  $6,000  has  been  incurred. 
It  is  stated  in  the  answer  that  the  territory  in  the  northerly  part 
of  section  26  was  not  included  as  a  part  of  the  proposed  village,  for 
the  reason  that  those  residents  were  opposed  to  incorporation,  and 
the  voters  residing  thereon  would  have  voted  against  the  proposition. 
The  answer  also  states  that  the  reason  why  so  large  an  extent  of 
unimproved,  wild,  and  cut-over  lands  are  included  is  to  better  pro- 
tect the  village  from  forest  fires  and  undesirable  settlements  in  the 
vicinity ;  that  the  police  protection,  and  the  control  of  fires,  peddlers, 
and  school  facilities  for  the  whole  community  can  be  accomplished 
best  with  the  nucleus  on  the  platted  portion  as  a  center.  Of  those 
residing  on  the  platted  portion,  who  voted  at  the  election  to  incorpo- 
rate, 67  voted  for  incorporation  and  27  voted  against  it. 

The  territory  involved  in  this  proceeding  is  not  of  so  great  extent 
as  that  involved  in  State  v.  Minnetonka  Village,  57  Minn.  526,  59  N. 
W.  972,  25  L.  R.  A.  755,  and  State  v.  Village  of  Fridley  Park,  61 
Minn.  146,  63  N.  W.  613.  In  amount  of  territory  the  case  more  nearly 
conforms  to  the  territory  involved  in  State  v.  Village  of  Holloway, 
90  Minn.  271,  96  N.  W.  40,  but  resembles  the  two  former  cases  in 
that  the  proposed  territory  embraces  several  settlements  having  no 
natural  connection  and  located  at  considerable  distances  from  the  plat- 
ted portion. 

The  settlements  around  the  several  mines  consist  of  miners  and 
their  families,  and,  although  no  stores  are  maintained  at  the  mines, 
it  is  apparent  that  the  general  purposes  for  which  villages  are  incor- 
porated have  no  common  relation  between  these  clusters  of  people. 
Large  tracts  of  undeveloped,  wild,  and  uninhabited  land  intervene 
and  the  territory,  as  a  whole,  does  not  constitute  a  village,  within 
the  definition  so  well  expressed  in  State  v.  Minnetonka  Village,  su- 
pra: "A  'village'  means  an  assemblage  of  houses,  less  than  a  town 
or  city,  but  nevertheless  urban  or  scmiurban  in  its  character ;  and 
the  object  of  the  law  was  to  give  these  aggregations  of  people  in 
a  comparatively  small  territory  greater  i)owers  of  self-government 
and  of  enacting  police  regulations  than  are  given  to  rural  com- 
munities under  the  township  laws.  The  law  evidently  contemplates, 
as  a  fundamental  condition  to  a  village  organization,  a  compact 
center  or  nucleus  of  pojjulation  on  platted  lands ;  and,  in  view  of 
the  expressed  purposes  of  tiie  act,  it  is  also  clear  that  by  the  term 
'lands  adjacent  thereto'  is  meant  only  those  lands  lying  so  near  and 
in  such  close  proximity  to  the  platted  portion  as  to  be  suburban  in 
their  character,  and  to  have  sonic  unity  of  interest  with  thr  platted 
portion  in  the  maintenance  of  a  village  government.     It   was   never 


22  CREATION    OF    MUNICIPAL    CORPORATIONS 

designed  that  remote  territory,  having  no  natural  connection  with  the 
village  and  no  adaptability  to  village  purposes,  should  be  included." 
Here  are  several  distinct  mining  settlements  separated  from  each  other, 
and  from  a  half  mile  to  a  mile  and  a  half  from  the  village  proper. 
It  has  not  been  made  to  appear  how  these  separate  communities  can 
be  brought  together  into  one  homogeneous  people,  and  equitable  and 
economically  governed  with  respect  to  light,  and  police  and  fire  pro- 
tection, to  say  nothing  of  the  benefits  to  be  received  by  the  distant 
settlements  from  the  graded  streets  and  sidewalks  within  the  plat- 
ted portion.  As  to  these  scattered  communities,  every  element  of 
"suburban  character"  and  "unity  of  interest"  is  lacking. 

But  respondents  insist  that  the  statute,  as  amended,  confers  upon 
the  county  commissioners  authority  to  determine  whether  the  pro- 
posed unplatted  territory  adjoins  the  platted  part  and  is  "so  condi- 
tioned as  properly  to  be  subject  to  village  government,"  and  that  their 
decision  is  final.  Prior  to  the  amendment  the  statute  read :  "Any  dis- 
trict, sections,  or  parts  of  sections,  not  in  any  incorporated  village 
in  the  state  of  Minnesota,  which  has  been  platted  into  lots  and  blocks, 
also  the  lands  adjacent  thereto,  when  said  plat  has  been  duly  and 
legally  certified  according  to  the  laws  of  this  state,  and  filed  in  the 
office  of  the  register  of  deeds  for  the  county  in  which  said  lands,  or 
the  larger  portion  thereof  lie,  said  territory  containing  a  resident  pop- 
ulation of  not  less  than  one  hundred  and  seventy-five,  may  become 
incorporated  as  a  village  under  this  act  in  the  following  manner." 
Section  1200,  Gen.  St.  1894.  The  amendment  (section  700,  Rev.  Laws 
1905)  reads :  "Territory  not  already  incorporated,  which  has  been 
wholly  or  partly  platted  into  lots,  with  a  view  to  village  occupancy, 
and  which  has  a  resident  population  of  not  more  than  three  thou- 
sand nor  less  than  two  hundred,  may  be  incorporated  as  a  village  in 
the  manner  hereinafter  prescribed.  But  the  unplatted  part  of  such 
territory  must  adjoin  the  platted  portion,  and  be  so  conditioned  as 
properly  to  be  subject  to  village  government."  The  amendment  adopts 
the  construction  by  this  court  of  the  previous  statute,  and  empha- 
sizes the  principle  that  outside  unplatted  territory  cannot  be  included 
in  a  village  unless  it  is  so  situated  that  it  is  naturally  connected  with 
and  so  situated  as  to  be  subject  to  village  government. 

As  to  the  procedure,  the  following  changes  were  made:  Under 
the  law  in  effect  prior  to  the  amendment,  the  statute  (section  1201, 
Gen.  St.  1894)  provided  that  30  or  more  of  the  electors  then  residents 
upon  the  lands  to  be  incorporated  might  petition  the  county  commis- 
sioners to  appoint  a  time  and  place  when  and  where  the  electors 
actually  residing  upon  the  lands  should  vote  upon  the  question.  The 
petition  was  to  set  forth  the  boundaries,  the  quantity  of  land  therein 
embraced,  and  the  number  of  persons  actually  residing  in  the  ter- 
ritory, to  be  determined  by  a  census  to  be  taken  under  the  direction 
of  the  petitioners;    and  section  1202  provided  that  the  county  com- 


TERRITORY  AND  POPULATION 


23 


missioners,  upon  delivery  to  them  of  the  petition,  should  post  or  cause 
to  be  posted  in  five  of  the  most  public  places  within  the  territory  three 
copies  of  the  petition,  stating  the  time  and  place  within  the  limits 
of  the  proposed  village  when  and  where  the  electors  might  vote  for 
or  against  the  incorporation,  and  the  commissioners  were  required 
to  appoint  three  inspectors  to  preside  at  the  election.  The  law  as 
amended  (section  701)  provides  that  25  voters  residing  within  the  ter- 
ritory must  sign  the  petition.  Section  702  reads  as  follows:  "If  the 
county  board  approve  said  petition,  it  shall  cause  a  copy  thereof,  with 
a  notice  attached  fixing  a  time  and  place  for  holding  such  election, 
to  be  posted  in  three  public  places  within  the  boundaries  described. 
The  time  shall  be  not  less  than  twenty  nor  more  than  thirty  days 
after  such  posting,  and  the  place  within  the  limits  of  the  proposed 
village.  If  there  be  a  qualified  newspaper  published  within  said  lim- 
its, there  shall  also  be  two  weeks  'published  notice  of  such  election.'  " 
Under  the  old  statute  the  commissioners  were  not  vested  with  any 
discretionary  power.  It  was  simply  made  their  duty,  when  a  petition 
in  the  proper  form  was  presented  to  them,  to  cause  the  notice  of 
election  to  be  given  and  appoint  inspectors  for  the  election.  They  did 
not  even  have  the  power  to  go  back  of  the  petition  and  determine  the 
genuineness  of  the  signatures,  as  is  prescribed  in  proceedings  for  the 
removal  of  county  seats. 

But  it  is  claimed  that  the  Legislature  intended  to  make  a  radical 
departure,  and  that  section  702  vests  in  the  county  commissioners 
discretionary  power  to  pass  upon  the  merits  of  the  proposition  and 
determine  whether  or  not  the  territory  set  out  in  the  petition  ad- 
joined the  platted  part,  and  was  so  conditioned  as  properly  to  be  sub- 
ject to  village  government.  It  is  argued  that,  the  commissioners  in 
this  case  having  considered  the  merits,  having  exercised  their  dis- 
cretion, and  determined  that  the  outlying  territory  did  adjoin  the  plat- 
ted part  and  was  so  connected  as  to  be  subject  to  village  govern- 
ment, their  decision  is  final  and  not  subject  to  review.  This  occa- 
sion does  not  call  for  any  extended  consideration  of  the  powers  which 
may  be  delegated  to  bodies  such  as  boards  of  county  commissioners. 
It  is  a  vexed  question,  concerning  which  there  is  a  wide  divergence 
of  judicial  opinion.  It  is  the  settled  law  of  this  state,  so  far  as  the 
incorporation  of  municipalities  is  concerned,  that  the  Legislature  may 
designate  such  bodies  as  the  instrumentality  to  submit  to  the  voters 
the  question  of  incorjjoration.  But  in  our  examination  of  this  class 
of  cases  we  have  failed  to  discover  any  instance  where  such  a  body 
has  been  vested  with  judicial  or  (luasi  judicial  powers  sufficient  to 
consider  and  finally  determine  the  merits  of  the  question.  'J'hat  the 
Legislature  intended  to  introduce  so  radical  a  change  is  not  warranlcd 
l«y  the  language  of  the  amendment.  The  significant  words  relied  upon 
by  respondents  are:  "If  the  county  board  aj)proves  such  petition." 
What  is  meant  by  the  word  "approves"?    Does  it  refer  to  the  deter- 


24  CREATION    OF    MUNICIPAL    CORPORATIONS 

mination  of  the  reasonableness  of  the  proposition  to  include  the  out- 
lying territory,  or  does  it  merely  mean  that  the  commissioners  shall 
determine  from  the  face  of  the  petition  whether  it  contains  the  req- 
uisite number  of  residents  and  signers,  and  is  in  proper  form?  It 
is  our  opinion  that  the  amendment  imposes  no  new  duties  on  the 
board  of  commissioners.  It  is  simply  another  way  of  stating  the  same 
duty  imposed  by  the  former  statute.  Upon  the  admitted  facts,  the 
village  was  not  incorporated  in  accordance  with  the  law. 

While  the  acting  officers  of  the  supposed  village  have  gone  on  and 
incurred  certain  expenses  for  improvements,  the  relator  has  not  been 
guilty  of  such  delay  in  bringing  this  action  as  to  call  for  the  appli- 
cation of  the  principle  of  waiver  or  estoppel.  There  has  been  no 
express  recognition  of  the  village  by  the  state,  and  the  case  is  clearly 
distinguishable  from  St.  Paul  Gaslight  Co.  v.  Village,  7Z  Minn.  225, 
75  N.  W.  1050,  and  State  v.  Village  of  Harris,  102  Minn.  340,  113 
N.  W.  887,  13  L.  R.  A.  (N.  S.)  533.    Let  the  writ  of  ouster  be  issued. 


V.  Assent  to  Incorporation 


SMITH  V.  CRUTCHER. 

(Court  of  Appeals  of  Kentucky,  1892.    92  Ky,  586,  18  S.  W,  521.) i 

Action  by  A.  B.  Smith  against  Z.  H.  Crutcher  to  restrain  defend- 
ant from  acting  as  police  judge.  From  a  judgment  dismissing  the 
action  plaintiff  appeals, 

Lewis,  J.'-^  At  an  election  held  May  3,  1890,  in  pursuance  of  the 
charter  of  the  town  of  Pineville  approved  in  1878,  and  of  an  amend- 
ment thereto  enacted  in  1888,  appellant,  being  a  candidate  for  office  of 
police  judge  of  said  town,  received  a  majority  of  votes  cast,  and  there- 
after received  a  commission,  and  qualified  as  such.  But  April  16, 
1890,  an  "act  to  incorporate  the  city  of  Pineville,  in  Bell  county,"  was 
passed  and  approved,  by  which  an  election  for  office  of  police  judge 
was  provided  to  be  held  May  13,  1890,  which  was  held,  and  appellee 
was  elected  to  that  office ;  and  thereafter  appellant  instituted  this  ac- 
tion, and  obtained  an  injunction  restraining  appellee  from  acting  as 
such  police  judge  in  performance  of  the  duties  which  he,  having 
qualified,  had  commenced.  But  the  injunction  having  upon  final  hear- 
ing been  dissolved,  and  judgment  rendered  dismissing  the  action,  this 
appeal  is  prosecuted.  No  evidence  was  heard  or  answer  filed,  and  the 
single  question  is  whether  the  facts  stated  in  the  petition,  that  are  to 

8  For  discussion  of  principles,  see  Cooley,  Mun.  Corp.  §  14. 

9  Part  of  tlie  opinion  is  omitted. 


CORPORATIONS   BY   IMPLICATION   OR   PRESCRIPTION  25 

be  taken  as  true,  are  sufficient  to  constitute  any  cause  of  action.  There 
can  be  no  question  of  the  power  of  the  legislature  to  pass  the  act  in- 
corporating the  "city  of  Pineville,"  which  was  intended  and  had  the 
effect  to  repeal  the  existing  charter  of  the  "town  of  Pineville,"  and 
to  regulate  municipal  affairs,  including  the  qualification  and  election  of 
officers,  without  regard  to  the  previous  town  charter.     *     *     * 

It  does  not  make  any  difference  whether  there  was  or  not,  as  al- 
leged, a  conspiracy  on  the  part  of  speculators  to  induce  the  legislature 
to  pass  the  act  of  April,  1890,  nor  was  it  necessary  to  the  vahdity  of 
that  act  for  it  to  have  been  approved  or  ratified  by  appellant,  the  town 
of  Pineville,  or  the  trustees  thereof,  in  the  absence  of  a  provision  re- 
quiring it  to  be  submitted  to  the  people  or  trustees  of  the  town  for 
ratification  or  approval ;  for,  as  the  statute  appears  to  have  been 
passed  by  the  legislature,  and  approved,  it  must  be  treated  as  valid  and 
effectual  for  all  the  purposes  of  its  enactment. 

It  is,  in  a  general  way,  alleged  in  the  petition  that  an  unlawful  mob 
or  conspiracy  was  formed  between  appellee,  the  city  of  Pineville,  and 
a  large  number  of  persons,  for  the  purpose  of  seizing  control  of  mu- 
nicipal affairs  of  Pineville,  without  authority  of  law,  and  that  the 
election  of  May  13th  was  held  without  previous  notice.  But  if,  as  is 
admitted  in  appellant's  petition,  the  election  was  held  on  the  day  fixed 
by  the  act  of  April,  1890,  appellee  was  a  citizen  of  Pineville,  had  the 
qualifications  prescribed  by  the  city  charter,  and  was  voted  for  by 
the  legal  voters  of  the  city,  he  is  entitled  to  the  office,  although  the 
manner  of  holding  the  election  may  have  been  informal ;  and  conse- 
quently the  action  was  properly  dismissed.     Judgment  affirmed. 


VI.  Corporations    by    Implication    or    Prescription  ^* 


STATE  ex  rel.  BROKING  v.  VAN  VALEN. 
(Suprome  Court  of  New  Jersey,  1S93.    5G  N.  J.  Law,  S5,  127  Atl.  1070.) 

Original  application  in  the  name  of  the  state  at  the  relation  of 
Henry  Broking  and  others  for  mandamus  to  James  M.  Van  Valen,  law 
judge  of  the  court  of  common  pleas  of  Bergen  county.  Heard  on  rule 
to  show  cause. 

LiiT'LVCOTT.  J.^^  On  the  20th  day  of  February,  1893,  a  petition 
was  presented  to  Hon.  James  M.  Van  Valen,  the  law  judge  of  the 
court  of  common  pleas  of  the  county  of  Bergen,  under  an  act  entitled 
"An  act   for   the   formation   and  government  of   villages,"  approved 

If  For  (lisfiissioii  of  i»riii<i|pl('s,  see  Cooloy,  Mini.  ('(irp.  §  15. 
11  Part  of  the  oitiuiou  i.s  oiiilLted. 


26  CREATION    OP    MUNICIPAL    CORPORATIONS 

February  23,  1891,  (P.  L.  1891,  p.  33,)  and  the  act  amendatory  there- 
to, approved  April  8,  1892,  (P.  L.  1892,  p.  416,)  to  call  an  election  to 
vote  for  or  against  the  incorporation  of  the  territory  therein  described 
as  a  village,  to  be  known  as  the  "Village  of  Carlstadt."  All  of  the 
territorial  area  was  within  the  township  of  Lodi.  The  petition  was 
signed  by  Henry  Broking  and  others,  residents  of  the  township  of 
Lodi.  One  part  of  the  territory  sought  to  be  incorporated,  now  known 
as  "Carlstadt,"  was  and  is  governed  by  a  board  of  trustees;  another 
portion  was  under  the  ordinary  township  government ;  and  still  anoth- 
er portion  is  known  as  the  "Village  of  New  Carlstadt,"  and  is  gov- 
erned substantially  the  same  as  the  first  portion,  by  a  board  of  trustees. 

No  objection  was  raised  before  the  law  judge,  nor  is  there  any  ob- 
jection here,  to  the  form  or  sufficiency  of  the  petition  and  the  pro- 
ceedings. The  only  question  raised  is  whether  the  act  of  1891  and  the 
amendments  of  1892  permit  the  incorporation  of  territory  situated  in 
parts,  as  this  territory  is,  and  governed  as  these  parts  are.  The  law 
judge  held  that  the  villages  of  Carlstadt  and  New  Carlstadt  were  in 
the  enjoyment  of  corporate  powers,  and  that,  therefore,  the  popula- 
tions contained  therein  were  not  the  persons  denominated  in  section  1 
of  the  act  of  1891,  and  as  to  them  the  procedure 'provided  by  section 
66  of  the  act  must  be  followed;  and,  as  that  had  not  been  done,  he 
refused  to  order  an  election.  This  is  now  an  application  on  rule  to 
show  cause  why  a  mandamus  to  compel  him  to  order  such  election 
should  not  issue  out  of  this  court. 

The  first  section  of  the  act  of  1891  provides  "that  the  inhabitants  of 
any  township  or  part  of  one  or  more  townships  in  this  state  may  be- 
come incorporated  as  a  village  under  this  act  by  complying  therewith," 
etc.  The  act  then  proceeds  to  direct  the  manner  of  incorporation  and 
organization,  the  manner  of  government,  and  provides  for  the  corpo- 
rate powers  to  be  conferred  upon  such  villages.  This  act  of  1891  was 
under  review  in  this  court  in  Re  Ridgefield  Park,  54  N.  J.  Law,  288, 
23  Atl.  674.  In  that  case  the  act  of  1891  was  held  in  an  essential  pro- 
vision to  be  invalid.  The  constitutionality  of  the  provisions  of  the 
statute  as  contained  in  the  fifth  section  of  the  act  was  questioned,  and 
it  was  determined  that  the  powers  attempted  to  be  conferred  by  that 
section  upon  the  circuit  judge  to  determine  whether  the  proposed 
boundaries,  of  the  village  were  such  as  would  be  most  advantageous 
and  consistent  with  the  public  interests,  and  to  confirm,  amend,  or  alter 
the  proposed  boundaries  as  should  seem  to  him  most  consistent  with 
public  or  private  interests,  were  powers  properly  belonging  to  the  ex- 
ecutive or  legislative  department,  and  not  to  be  exercised  by  the  cir- 
cuit judge,  who  was  a  person  belonging  by  force  of  the  constitution 
to  the  judicial  department;  and  that,  therefore,  this  provision  of  the 
act  was  unconstitutional. 

By  the  amendatory  act  of  1892,  to  which  reference  has  been  made, 
section  5  of  the  act  of  1891  was  repealed,  and  the  attempt  made  to 


CORPORATIONS    BY   IMPLICATION   OR   PRESCRIPTION  27 

eliminate  the  unconstitutional  provisions  of  the  act  of  1891 ;  and  in 
the  decision  of  the  case  here  now  before  the  court  the  act  of  1891  as 
amended  by  the  act  of  1892  has  been  treated  as  furnishing  a  constitu- 
tional scheme  for  the  incorporation  of  villages.  *  *  *  The  sixty- 
sixth  section  of  the  act  of  1891,  as  amended  by  the  act  of  1892,  pro- 
vides "that  it  shall  be  lawful  for  any  village  heretofore  incorporated 
by  virtue  of  any  special  or  general  law  to  adopt  the  provisions  of  this 
act  and  thereafter  to  be  governed  by  the  same  in  lieu  of  the  act  under 
which  such  village  was  originally  incorporated.     *     *     * 

It  has  been  conceded  in  the  argument  that,  if  either  of  the  villages  of 
Carlstadt  or  New  Carlstadt  have  been  heretofore  incorporated  by  any 
general  or  special  law  of  this  state,  then  they,  by  virtue  of  this  pro- 
ceeding, cannot  be  included  within  the  proposed  incorporation,  if  upon 
them,  or  either  of  them,  corporate  powers  for  municipal  purposes  have 
been  conferred;  and  mandamus  will  not  lie  to  compel  the  law  judge 
to  call  an  election  under  the  statutes  to  which  reference  has  been 
made.     *     *     * 

There  can  be  no  question  here,  as  matter  of  fact,  that  the  area  in- 
cludes what  is  known  as  the  "Village  of  Carlstadt"  and  what  is  known 
as  the  "X^illage  of  Xew  Carlstadt" ;  the  first  village  governed  with  lim- 
ited powers  by  a  board  of  trustees  and  a  board  of  fire  commissioners, 
the  second  village  governed  by  a  board  of  trustees.  In  1860  (P,  L. 
p.  234)  an  act  was  passed  by  the  legislature  entitled  "An  act  to  au- 
thorize the  inhabitants  of  the  village  of  Carlstadt  in  the  county  of 
Bergen  to  improve  the  sidewalks  of  the  streets  of  said  village."  Pre- 
vious to  the  passage  of  this  act  a  large  tract  of  land,  including  the  en- 
tire village  of  Carlstadt,  had  been  purchased  by  a  corporation,  organ- 
ized and  known  by  the  name  of  the  "German  Democratic  Land  Asso- 
ciation of  Carlstadt,"  the  tract  was  mapped  out,  and  a  map  filed  in  the 
licrgen  county  clerk's  office.  This  tract  of  land,  in  territorial  area, 
now  constitutes  the  village  of  Carlstadt.  This  map  is  referred  to  in 
the  act  of  1860.     *     *     '■'" 

This  statute  remained  without  amendment  until  the  year  1873,  wiien 
a  supplement  was  passed,  (P.  L.  1873,  p.  770.)  which  conferred  upon 
the  landowners  of  the  village  the  power  to  elect  "nine  suitable  persons 
being  landowners  as  aforesaid,  who  shall  constitute  and  be  styled  'The 
Carlstadt  ]5oard  of  Trustees,'  "  and  provided  for  their  terms  of  office; 
also  for  the  election  of  one  superintendent  of  streets  and  two  street 
commissioners,  and  providing  for  the  appointment  of  a  clerk  and  col- 
lector by  the  board  of  trustees.  The  act  creates  the  board  of  trustees 
to  govern  the  village,  with  powers  to  grade,  work,  and  repair  the 
streets  and  roads  laid  out,  to  levy  assessments  for  the  same,  etc.,  to 
borrow  and  to  issue  bonds ;  the  right  of  suffrage  for  village  purposes 
remaining  in  the  landowners.  By  general  law  of  1890  (P.  L.  1890,  p. 
241)  the  power  of  voting  was  extended  to  every  citizen  who  was  en- 
titled to  vote  at  any  general  election  for  members  of  the  legislature. 


28  CREATION    OF    MUNICIPAL   CORPORATIONS 

In  1872  (P.  L.  1872,  p.  416)  the  Carlstadt  fire  department  was  or- 
ganized, without  however,  giving  any  Hmit  of  territory  or  boundaries. 
The  incorporators  were  made  a  body  corporate  under  the  name  of  the 
"Carlstadt  Fire  Department  of  Bergen  County,"  with  entire  corporate 
capacity  by  that  name.  In  1872  (P.  L.  1873,  p.  734)  the  main  in- 
habitants within  certain  boundaries  inchiding  the  village  of  Carlstadt 
were  constituted  a  body  corporate  under  the  name  and  style  of  "The 
Carlstadt  Fire  Department  of  Bergen  County."  Certain  appropriate 
powers  were  conferred  by  this  act  upon  this  corporation.  These  acts 
of  the  legislature  clearly  recognize  a  territorial  area  known  as  "Carl- 
stadt," governed  otherwise  than  by  township  government.  *  *  * 
The  village  of  New  Carlstadt  was  organized  by  virtue  of  an  act  en- 
titled "An  act  to  authorize  the  landowners  of  the  village  of  New 
Carlstadt  in  the  county  of  Bergen  to  make  improvements,"  (P.  L.  1873, 
p.  738.)  Its  provisions  seem  to  confer  upon  the  trustees  selected 
under  the  act  similar  powers  to  those  conferred  upon  the  trustees  of 
the  village  of  Carlstadt.  *  *  *  If  either  one  of  these  are  incor- 
porated villages,  this  proceeding  for  the  incorporation  of  the  pro- 
posed village  fails.     *     *     * 

The  contention  of  the  relator  here  is  that  neither  of  these  two 
villages  are  incorporated,  but  certainly  the  statutes  relating  to  them 
create  a  board  of  trustees  as  a  governing  body,  and  confer  corporate 
powers  upon  them.  It  is  true,  the  powers  are  limited,  but  they  are 
the  corporate  powers  usually  conferred  upon  municipalities  of  this 
grade.  It  is  not  necessary  that  all  kinds  of  municipal  powers  should 
be  conferred;  neither  is  it  necessary  that  the  corporate  powers  be- 
stowed be  conferred  by  express  legislative  grant,  in  order  to  create  a 
body  politic  and  corporate.  Such  express  words  are  in  many  instances 
wanting;  but  if,  from  the  whole  of  the  statutes,  incorporation  is  in- 
ferred, it  will  be  sufficient;  and  it  does  seem  conclusive  under  the 
ordinary  interpretation  of  the  language  of  the  statutes,  that  corporate 
powers  were  conferred.  The  power  to  issue  bonds  in  the  name  of 
the  village  is  a  corporate  power,  and  if  they  are  not  possessed  of  such 
corporate  power  the  words  of  the  statute  giving  the  power  to  issue 
bonds  are  utterly  meaningless. 

The  village  of  Carlstadt  was  incorporated  within  the  meaning  of 
section  66  of  the  act  of  1891,  in  that  there  was  an  institution  by  these 
laws  to  regulate  and  administer  the  internal  affairs  to  some  extent  of 
the  inhabitants  of  that  defined  locality,  in  matters  peculiar  to  the 
village,  and  not  common  to  the  people  of  the  state  at  large.  There  was 
here  an  incorporated  instrumentality  to  exercise  powers,  perform 
duties,  and  execute  functions  which  were  strictly  municipal  in  their 
nature, — powers,  duties,  and  functions  to  be  exercised  by  local  offi- 
cers within  well-defined  territorial  limits.  Dillon,  in  his  work  on  Mu- 
nicipal Corporations,  (volume  1,  §  42,)  lays  down  a  rule  which  it 
would  appear  is  clearly  applicable  in  the  present  case.    He  says :  "AI- 


CORPORATIONS   BY   IMPLICATION    OR   PRESCRIPTION 


29 


though  corporations  in  this  country  are  created  by  statute,  still  the 
rule  is  here  settled  that  not  only  private  corporations  aggregate,  but 
municipal  or  public  corporations  may  be  established  without  any  par- 
ticular form  of  words  or  technical  mode  of  expression,  although  such 
words  are  commonly  employed.  If  powers  and  privileges  are  con- 
ferred upon  a  body  of  men,  or  upon  the  residents  or  inhabitants  of  a 
town  or  district,  and  if  these  cannot  be  exercised  and  enjoyed,  and  if 
the  purposes  intended  cannot  be  carried  into  effect,  without  acting  in 
a  corporate  capacity,  a  corporation  is  to  this  extent  created  by  im- 
plication. The  question  is  upon  the  intent  of  the  legislature,  and  this 
can  be  shown  constructively  as  well  as  expressly." 

Inhabitants  of  the  Fourth  School  District  v.  Wood,  13  ]\Iass.  193, 
was  a  case  where  the  question  was  whether  the  plaintiffs  were  a 
corporate  body,  with  power  to  sue.  They  were  not  incorporated  ex- 
pressly. But  by  statute  the  inhabitants  of  the  several  school  districts 
were  empowered,  at  any  meeting  properly  called,  to  raise  money  to 
erect,  repair,  or  purchase  a  school  house,  to  determine  its  site,  etc., 
the  majority  binding  the  minority.  The  opinion  of  the  court  was  that 
the  plaintiffs  possessed  sufficient  corporate  powers  to  maintain  an 
action  on  a  contract  to  build  a  school  house  and  to  make  to  them  a 
lease  of  land.  The  village  of  Carlstadt,  upon  a  contract  to  pave  side- 
walks, could  maintain  an  action ;  and  so,  too,  could  an  action  be  main- 
tained against  them  to  levy  the  assessments  in  accordance  with  the 
statute,  to  pay  the  expense  of  such  paving.  The  villages  here  were 
possessed  of  limited  corporate  powers  of  a  very  simple  grade,  but 
the  powers  conferred  were  no  less  corporate.  Acts  of  the  legislature 
have  been  frequently  passed  incorporating  towns  and  villages  within 
townships  for  special  and  limited  purposes.  In  such  cases  the  in- 
habitants of  the  district  incorporated  remained  inhabitants  of  the 
township  within  which  the  town  is  situate  for  all  purposes  except 
those  within  the  objects  of  the  municipal  government,  and  the  juris- 
diction of  the  township  officers  continues  over  them  only  so  far  as 
not  inconsistent  with  the  provisions  of  the  incorporating  act.  State  v. 
Troth,  34  X.  J.  Law,  387.  The  village  incorporation  is  of  the  lowest 
grade,  conferring  the  most  limited  powers.  It  ranks  below  the  bor- 
ough or  the  town,  but  within  its  range  its  incorporated  powers  are  as 
amply  protected  as  those  of  a  city. 

The  conclusion  in  this  case  is  reached  that  the  villages  of  Carlstadt 
and  New  Carlstadt  are  incorporated  villages  within  the  interpretation 
of  the  sixty-sixth  section  of  the  act  of  1891,  as  amended,  and  they 
cannot  take  advantage  of  the  other  provisions  of  that  act.  or  be  com- 
pelled to  accept  them,  except  in  accordance  with  the  provisions  of  that 
section.     Therefore  the  mandamus  is  refu.sed,  with  costs. 


30  CREATION    OF    MUNICirAL    COIirORATIONS 


VII.  Validity  of   Incorporation — De   Facto  Corporations  ^'' 


CITY  OF  GUTHRIE  v.  TERRITORY  ex  rel.  LOSEY. 

(Supreme  Court  of  Oklahoma,  1892.    1  Old.  188,  31  Tac.  190,  21  L.  R.  A.  841.) 

BuRFORD,  J. ^3  On  the  22d  day  of  April,  1889,  at  the  opening 
of  the  Oklahoma  country  to  settlement  and  occupancy,  a  large  num- 
ber of  people  settled  for  town-site  purposes  upon  the  lands  now  oc- 
cupied by  the  city  of  Guthrie.  The  act  of  congress  approved  March 
2,  1889,  contains  a  provision  that  no  entry  of  lands  for  town-site 
purposes  shall  embrace  more  than  320  acres  in  any  one  entry.  To 
avoid  this  inhibition,  and  segregate  more  lands  for  the  purpose  of 
trade  and  business,  four  separate  entries  were  made  of  these  lands, 
consisting  of  320  acres  each,  and  were  severally  denominated  Guthrie, 
East  Guthrie,  Capitol  Hill,  and  West  Guthrie.  The  town-site  settlers 
and  occupants  of  each  of  these  subdivisions  organized  what  were 
called  "provisional  governments,"  under  charters  adopted  by  the  peo- 
ple at  public  meetings  held  for  such  .purpose,  and  each  selected  mu- 
nicipal officers,  made  public  improvements,  graded  streets,  erected 
buildings,  constructed  bridges,  adopted  laws  and  ordinances,  and  ar- 
rested, punished,  and  imprisoned  violators  of  such  ordinances.  These 
provisional  governments  assumed  and  exercised  all  the  powers,  func- 
tions, and  authority  of  legally  constituted  municipal  corporations,  and 
continued  to  exercise  the  same  until  the  month  of  August,  A.  D.  1890, 
when  they  were  consolidated,  and  organized  as  a  village  corporation, 
under  and  pursuant  to  the  laws  of  Nebraska,  as  adopted  and  extended 
over  said  territory  by  the  act  of  congress  approved  May  2,  1890, 
providing  a  territorial  government  for  the  territory  of  Oklahoma. 
*  *  *  The  village  of  Guthrie  continued  her  corporate  existence 
until  after  the  adjournment  of  the  first  territorial  legislature,  when 
she  organized  as  a  city  of  the  first  class,  under  the  laws  of  Okla- 
homa.    *     *     * 

The  first  question  to  be  determined  in  this  controversy  is  as  to  the 
legal  status  or  character  of  the  so-called  "provisional  governments." 
It  is  a  well-established  rule  of  law  that  before  there  can  be  a  de 
facto  municipal  corporation  there  must  be  some  authority  for  a  de 
jure  corporation.  A  de  facto  corporation  cannot  exist  where  there 
is  no  law  authorizing  a  de  jure  corporation.  Norton  v.  Shelby 
County,  118  U.  S.  426,  6  Sup.  Ct.  1121,  30  L.  Ed.  178;  Evenson- v. 
Ellingson,  67  Wis.  634,  31  N.  W.  342.  "The  proposition  which  lies 
at  the  foundation  of  the  law  of  corporations  of  this  country  is  that 

12  For  discussion  of  principles,  see  Cooley,  Mun.  Corp.  §§  16,  17. 

13  Part  of  the  opinion  is  omitted. 


VALIDITY   OF   INCORPORATION — HOW   TESTED  31 

here  all  corporations,  public  and  private,  exist,  and  can  only  exist, 
by  virtue  of  express  legislative  enactment,  creating  or  authorizing 
the  creation  or  existence  of  the  corporate  body.  Legislative  sanction 
is.  with  us,  absolutely  essential  to  lawful  corporate  existence."  Dill. 
]\Iun.  Corp.  §  o7.  Was  there  any  legislative  sanction  to  the  existence 
of  municipal  corporations  prior  to  the  act  of  congress  approved  May 
2,  1890?  We  are  unable  to  find  any  such  authorit>\  These  provisional 
governments  grew  out  of  a  necessity  made  by  the  absence  of  legal 
authority.  They  were  aggregations  of  people  associated  together 
for  purpose  of  mutual  benefit  and  protection.  Without  any  statute 
law,  they  became  a  law  unto  themselves,  and  adopted  the  forms  of 
law  and  government  common  among  civilized  people,  and  enforced 
their  authority  by  the  power  of  public  sentiment.  They  had  no  legal 
existence ;  they  were  nonentities ;  they  could  not  bind  themselves 
by  contracts,  or  bind  any  one  else ;  they  were  morally  bound  to  make 
just  recompense  for  that  which  they  received  in  money,  labor,  or 
materials,  but  no  such  obligations  could  be  enforced  against  them. 
The  organic  act  furnished  them  a  sovereign  civil  government,  and 
supplied  the  authority  for  constituting  de  jure  municipal  corporations. 
Then  they  became  and  were  de  facto  corporations  until  such  time  as 
they  complied  with  the  laws  relating  to  incorporating  villages,  and 
became  a  de  jure  corporation.     *     *     * 


VIII.  Validity  of  Incorporation — How  Tested  ^* 


ST.  PAUL  GASLIGHT  CO.  v.  VILLAGE  OF  SANDSTONE. 

(Supreme  Court  of  Minnesota,  189S,    73  Minn.  225,  75  N.  W.  1050.) 

Start,  C.  J.'^  This  action  was  brought  to  recover  the  amount 
of  twelve  interest  coupons  cut  from  six  bonds  of  the  village  of  Sand- 
stone. *  *  *  At  the  close  of  the  evidence  the  trial  court  directed 
a  verdict  for  the  plaintiff  for  the  amount  claimed,  and  the  defendant 
appealed  from  an  order  denying  its  alternative  motion  for  judgment 
notwithstanding  the  verdict  or  for  a  new  trial. 

The  bonds  in  cjuestion  are  payable  to  bearer,  and  are  issued  under 
and  by  virtue  of  the  provisions  of  Laws  1893,  c.  200,  for  the  pur- 
chase of  a  system  of  waterworks  from  the  Sandstone  Water  Com- 
pany.    *     *     ♦ 

The  flefcndant's  first  claim  is  that  the  bonds  arc  not  merely  void- 
able,  but   absolutely    void,    for    the    rcasfju    that    the    village    had    no 

I*  Tor  dlsfussloii  of  jiiinciplcs,  .see  Cooli-y,  Mini.  Coii).  §§  lG-18. 
i"'  I'art  of  the  opinion  is  omitted. 


32  CREATION    OF    MUNICIPAL    CORPORATIONS 

power  to  issue  them,  and  therefore  they  are  void  in  the  hands  of  the 
plaintiff,  without  reference  to  the  question  whether  it  is  or  is  not  a 
bona  fide  purchaser  thereof.  It  is  claimed  that  the  village  had  no 
power  to  issue  the  bonds  under  any  circumstances,  because  there  is 
not,  nor  ever  was,  any  village  of  Sandstone;  that  the  statute  (Laws 
1885,  c.  145)  under  which  it  attempted  to  organize  as  a  municipal 
corporation  is  unconstitutional,  for  the  reason  that  it  delegates  legis- 
lative functions  to  30  private  citizens  ;  and,  further,  that  it  contravenes 
article  111  of  the  constitution  of  the  state  distributing  the  powers 
of  government. 

This  statute,  as  construed  in  the  case  of  State  v.  Village  of  Min- 
netonka,  57  Minn.  526,  59  N.  W.  972,  25  L.  R.  A.  755,  is  constitu- 
tional. The  legislature  by  the  statute  fixed,  determined,  and  specified 
all  the  conditions  and  facts  upon  which  the  incorporation  of  certain 
territory  should  depend,  and  the  powers  of  the  municipal  corporation 
so  to  be  organized.  The  point  here  made,  that  the  statute  is  uncon- 
stitutional because  legislative  functions  were  delegated  to  the  30  pe- 
titioners who  are  authorized  by  the  statute  to  take  the  initiative  in 
the  organization  of  the  village  by  presenting  a  petition  to  the  county 
commissioners  was  made  in  the  case  of  State  v.  Village  of  Minne- 
tonka,  and  was  by  necessary  implication,  if  not  directly,  overruled; 
for  it  was  held  that  discretion  was  not  conferred  upon  the  petitioners 
to  arbitrarily  determine  how  much  and  what  territory  should  be  in- 
cluded in  the  village.  The  legislature  determined  with  practical  cer- 
tainty what  territory  might  be  incorporated  as  a  village  under  the 
statute  by  limiting  its  operations  to  platted  lands  and  other  lands 
adjacent  thereto,  and  so  near  the  center  of  population  thereon  as  to 
render  them  suburban  in  their  character. 

It  is  also  claimed  that  the  incorporation  of  the  village  was  void 
because  it  included  within  the  corporate  limits  territory  not  adjacent 
to  the  platted  lands  therein,  within  the  meaning  of  the  statute  as 
construed  by  this  court.  Whether  unauthorized  territory  was  included 
in  the  village  is  wholly  immaterial  in  this  case.  It  is  admitted  that 
since  1889,  when  the  village,  in  form,  at  least,  was  incorporated  by 
a  compliance  with  the  statute  as  to  all  matters  of  procedure  and  form, 
it  has,  whether  a  de  jure  corporation  or  not,  existed  as  a  de  facto 
municipal  corporation,  exercising  in  fact  all  the  powers  of  such  a 
corporation,  and  that  it  has  been  recognized  as  a  village  incorporated 
under  the  statute  by  the  authorities  of  the  town,  city,  and  state  in 
which  its  territory  lies. 

We  have,  then,  a  valid  law  under  which  the  village  might  have  been 
incorporated  as  a  de  jure  municipal  corporation,  an  attempt  so  to 
incorporate,  and  the  continuous  exercise  of  all  of  the  powers  of  such 
a  corporation  for  more  than  four  years  before  issuing  its  bonds.  The 
state  has  never  questioned  its  existence  as  a  de  jure  municipal  corpora- 
tion, but  has  recognized  it  as  such.     Such  being  the  facts,  the  case  is 


OPERATION   AND   EFFECT   OF   INCORPORATION  33 

within  the  rule  that,  where  a  municipal  corporation  is  acting  under 
color  of  law  and  exercising  all  the  functions  and  powers  of  a  corpo- 
ration de  jure,  and  the  legality  of  its  incorporation  is  not  questioned 
by  the  state,  but  it  has  been  recognized  as  such  by  the  state  for  some 
years,  neither  the  corporation  nor  any  private  party  can  question  the 
validity  of  its  corporate  existence  in  a  collateral  action  or  proceed- 
ing. State  V.  Honerud,  66  Minn.  32,  68  N.  W.  323 ;  State  v.  Crow 
Wing  Co.,  66  Minn.  528,  68  N.  W  767,  69  N.  W.  925,  7Z  N.  W.  631, 
35  L  R  A.  745;  1  Dill.  Mun.  Corp.  §  43a;  Cooley,  Const.  Lim. 
(6th  Ed.)  309,  310;  15  Am.  &  Eng.  Enc.  Law,  964.  *  *  *  Or- 
der affirmed. 


IX.  Operation  and  Effect  of  Incorporation 


16 


RUMSEY  V.  TOWN  OF  SAUK  CENTRE. 
(Supreme  Court  of  Minnesota,  1894.    59  Minn.  316,  61  N.  W.  330.) 

Action  by  Charles  F.  Rumsey  against  the  town  of  Sauk  Centre, 
and  on  motion  of  defendant  the  city  of  Sauk  Centre  was  made  a  party 
defendant.  From  an  order  overruling  a  demurrer  by  the  city  to  the 
complaint,  it  appeals. 

Mitchell,  J.  This  action  was  originally  brought  against  the 
town  of  Sauk  Centre  alone,  but  subsequently,  on  motion  of  the  town, 
neither  the  plaintiff  nor  the  city  objecting,  the  city  of  Sauk  Centre  was 
made  a  party  defendant,  and  plaintiff  amended  his  complaint  accord- 
ingly. The  defendant  city  demurred  to  the  complaint,  on  the  ground 
that  it  did  not  state  a  cause  of  action.  From  an  order  overruling  this 
demurrer  the  city  appealed.  Stated  in  chronological  order,  the  alle- 
gations of  the  complaint  are  as  follows:  The  town  of  Sauk  Centre 
was  a  duly-organized  township  in  the  county  of  Stearns.  The  village 
of  Sauk  Centre,  situated  within  the  town,  was  organized  as  an  in- 
corporated village  under  Gen.  Laws  1875,  c.  139,  and  Sp.  Laws  1876, 
c.  16,  and  so  continued  until  the  incorporation  of  the  city  of  Sauk 
Centre,  in  1889.  In  December,  1882,  the  town,  in  pursuance  of  the 
provisions  of  Sp.  Laws  1879,  c.  143,  issued  to  the  Little  Falls  &  Da- 
kota Railroad  Company  its  bonds  to  the  amount  of  $12,000.  which 
were  afterwards  sold  and  transferred  to  the  i)laintiff,  and  upon  which 
he  brings  this  action. 

In  18.S5  the  legislature  passed  an  act  (Sp.  Laws  1885,  c.  296)  enti- 
tled "An  act  to  provide  for  the  payment  of  the  bonded  indebtedness 
of  the  town  of  Sauk  Centre  incurred  by  said  town  by  the  issue  of 

10  For  rliscnssion  of  principles,  see  Cooley,  -Mun.  Corp.  §  21. 
CooLEY  Ca.ses  Mu.n.C— 3 


34  CREATION    OP    MUNICIPAL    COIirORATIONS 

its  bonds  prior  to  the  year  1883  and  to  apportion  said  indebtedness 
between  the  present  town  of  Sauk  Centre  and  the  village  of  Sauk 
Centre."  The  provisions  of  this  act  were  that  the  bonded  indebted- 
ness of  the  town  incurred  by  the  issue  of  its  bonds  prior  to  1883  should 
be  apportioned  and  made  chargeable  to  and  payable  by  the  town  as 
then  constituted,  and  by  the  village  pro  rata  in  the  proportion  that 
the  valuation  of  taxable  property  of  the  town  and  village,  respectively, 
shall  bear  to  the  entire  valuation  of  the  taxable  property  of  the  town 
and  village  collectively,  said  valuation  to  be  determined  by  the  gen- 
eral tax  assessment  list  last  preceding  the  time  when  the  several  in- 
stallments of  principal  and  interest  upon  such  bonds  become  due  and 
payable;  and  that  the  payment  of  such  proportionate  shares  thereby 
apportioned  should  be  provided  for,  and  paid  by,  and  be  recoverable 
against,  the  town  and  village,  respectively,  as  they  become  due,  in 
the  same  manner  as  other  debts  of  the  town  and  village,  respectively, 
were  by  law  provided  for,  made  payable  and  recoverable.  In  March, 
1889,  the  city  of  Sauk  Centre  was  incorporated  by  Sp.  Laws  1889, 
c.  4.  The  city  included  the  whole  of  the  village,  and  880  acres  which 
were  outside  the  village,  but  within  the  town.  This  act  provided  that 
upon  the  election  and  qualification  of  the  city  officers  in  April,  1889, 
the  village  corporation  should  cease,  and  thereupon  the  city  should 
succeed  to,  and  become  vested  with  and  the  owner  of,  all  the  prop- 
erty and  rights  of  action  which  belonged  to  the  village,  and  should 
be  and  become  liable  for  all  the  debts,  obligations,  and  liabilities  then 
existing  against  the  village  for  any  cause  or  consideration  whatever, 
in  the  same  manner  and  to  the  same  extent  as  if  originally  con- 
tracted or  incurred  by  the  city. 

1.  The  allegations  of  the  complaint  are  full  to  the  efifect  that  the 
bonds  were  duly  issued  by  the  town  by  virtue  of  and  in  accordance 
with  the  provisions  of  Sp.  Laws  1879,  c.  143.  Whether,  in  case  these 
allegations  are  untrue,  the  recitals  in  the  bonds  are  sufficient  to  estop 
the  town  or  city  from  asserting  the  fact  against  a  bona  fide  pur- 
chaser for  value  and  before  maturity,  is  a  question  not  here  involved, 
and  hence  need  not  be  considered. 

2.  An  examination  of  the  acts  under  which  the  village  was  or- 
ganized will  show  that,  according  to  the  repeated  decisions  of  this 
court  in  similar  cases,  it  remained  a  part  of  the  town  for  all  pur- 
poses, except  the  village  purposes  provided  for  in  the  acts.  The  prop- 
erty within  the  village  was  subject  to  taxation  for  the  payment  of 
these  bonds  in  the  same  manner  and  to  the  same  extent  as  any  other 
property  in  the  town.  Bradish  v.  Lucken,  38  Minn.  186,  36  N.  W. 
454. 

3.  Inasmuch  as  this  condition  of  things  still  continued,  it  is  not 
apparent  what  was  the  particular  necessity  for  the  enactment  of  the 
law  of  1885.  But  the  meaning  and  effect  of  that  act  are  quite  clear. 
It  did  not  and  could  not  affect  or  change  the  rights  of  the  holders 


OPERATION    AND   EFFECT   OF   INCORPORATION  35 

of  the  bonds  against  the  town.  But,  as  between  themselves,  it  prac- 
tically made  the  village  and  the  remainder  of  the  town  two  separate 
and  distinct  districts  as  respects  liability  for  and  the  payment  of  all 
outstanding  bonds  of  the  village  issued  prior  to  1883,  and  apportioned 
this  indebtedness  between  the  two  in  the  ratio  of  the  taxable  property 
within  their  respective  limits.  Under  this  act,  the  village  would  be 
liable  to  the  holders  of  the  bonds  to  the  extent  of  the  amount  appor- 
tioned to  it;  and,  if  the  town  (outside  of  the  village  limits)  was  com- 
pelled to  pay  more  than  its  share,  it  could  have  recovered  it  back 
from  the  village.  The  power  of  the  legislature  to  do  this  is  undoubted. 
The  village  was  a  part  of  the  town  which  issued  the  bonds.  All  the 
property  within  its  limits  was  liable  to  taxation  for  their  payment. 
The  part  apportioned  to  the  village  did  not  impose  any  materially 
greater  burden  of  taxation  upon  the  property  within  its  limits  than 
it  was  already  subject  to.  The  right  of  the  legislature  in  all  cases 
not  within  any  constitutional  inhibition  to  create,  alter,  divide,  or 
abolish  all  municipal  corporations,  and  to  make  such  division  and 
apportionment  of  the  corporate  property  and  debts  of  old  corpora- 
tions, in  case  of  a  division  of  their  territory,  as  the  legislature  may 
deem  equitable,  is  w^ell  settled.  State  v.  City  of  Lake  City,  25  Minn. 
404 ;  City  of  Winona  v.  School  Dist.  No.  82,  40  Minn.  13,  41  N.  W. 
539,  3  L.  R.  A.  46,  12  Am.  St.  Rep.  687.  And  it  can  make  no  dififer- 
ence  whether  the  legislature  divides  the  old  corporation  only  for  a 
particular  purpose  or  for  aM  purposes.  The  intention  of  the  act  of 
1885  to  make  the  village,  as  a  municipal  corporation,  liable  for  the 
designated  proportion  of  the  town  bonds,  is  very  clear ;  and.  as  we 
construe  its  provisions,  there  is  no  ground  for  the  contention  that  the 
holders  of  the  bonds  could  not  recover  against  the  village,  but  that 
it  would  only  be  liable  over  to  the  town.  The  fact  that  the  city  in- 
cludes 880  acres  more  than  the  village  neither  alters  the  law  of  the 
case,  nor  involves  any  practical  difficulty. 

The  liability  of  the  village  being  established,  the  liability  of  the 
city,  as  its  successor,  under  the  act  of  1889,  is  too  clear  to  require 
argument.  In  case  the  plaintiff  establishes  his  cause  of  action,  he 
will  be  entitled  to  judgment  against  the  town  by  virtue  of  its  contract 
for  the  full  amount  of  the  bonds, — and  against  the  city,  by  virtue  of 
the  acts  of  1885  and  1889,  to  the  extent  of  its  proportionate  share, 
as  fixed  by  the  act  of  1885.  There  is  nothing  in  the  point  that  the 
act  of  1885  violated  section  27,  art.  4,  of  the  constitution  of  the  state. 
Neither  is  there  anything  in  the  objection  that  it  is  a  legislative  exer- 
cise of  judicial  power.  It  docs  not  assume  to  pass  upon  the  vahdity 
of  any  outstanding  bonds  of  the  town.  If  there  are  any  such  which 
were  not  a  valid  iuflcbtcdness  of  tlie  town,  that  defense  is  still  avail- 
able to  both  the  town  and  the  city.     Order  affirmed. 


36  LEGISLATIVE    CONTROL 


LEGISLATIVE  CONTROL 
L  Legislative  Control  in  General^ 


PEOPLE  ex  rel.  LE  ROY  v.  HURLBUT. 

(Supreme  Court  of  Michigan,  1871.    24  Micli.  44,  9  Am.  Rep.  103.) 

Information  in  the  nature  of  quo  warranto,  brought  to  test  the 
right  of  the  members  of  the  boards  of  water  commissioners  and 
sewer  commissioners  of  the  city  of  Detroit  to  continue  in  office  aft- 
er the  taking  efifect  of  an  act  estabHshing  a  board  of  pubHc  works. 
The  questions  raised  relate  to  the  validity  of  that  act. 

The  act  creates  a  board  of  public  works  for  the  city  of  Detroit 
and  transfers  to  such  board  all  the  powers,  duties,  and  responsibil- 
ities of  the  "board  of  water  commissioners,"  the  "board  of  sewer 
commissioners,"  and  of  the  "commissioners  of  grades  and  plans." 
It  vests  in  the  board,  for  the  purposes  of  the  city,  the  property  of 
the  old  boards,  of  which  the  water-works  was  the  greater  part;  au- 
thorizes the  board  to  take  property  by  the  right  of  eminent  domain ; 
to  contract  for  the  performance  of  the  works  entrusted  to  them,  and 
employ  workmen ;  to  draw  upon  the  proper  funds,  or,  in  certain  cas- 
es, to  issue  bonds,  for  payment  of  expenses;  and  to  make  by-laws 
governing  the  public  works  in  their  charge. 

The  act  appoints  the  first  members  of  the  board,  specifies  the 
terms  of  their  offices  respectively,  and  provides  that  vacancies, 
whether  by  expiration  of  term  or  otherwise,  shall  be  filled  by  the 
common  council  of  the  city;  and  provides  that  no  person  shall  be 
eheible  for  said  board  who  is  not  a  freeholder  in  said  city,  and  a 
qualified  elector. 

Coolly,  j.2  *  *  *  \Ye  have  before  us  a  legislative  act  creat- 
ing for  the  city  of  Detroit  a  new  board,  which  is  to  exercise  a  con- 
siderable share  of  the  authority  usually  possessed  by  officers  locally 
chosen ;  to  have  general  charge  of  the  city  buildings,  property,  and 
local  conveniences,  to  make  contracts  for  public  works  in  behalf  oi 
the  city,  and  to  do  many  things  of  a  legislative  character  which  gen- 
erally the  common  council  of  cities  alone  is  authorized  to  do.  The 
legislature  has  created  this  board,  and  it  has  appointed  its  mem- 
bers ;  and  both  the  one  and  the  other  have  been  done  under  a  clairr 

1  For  discussion  of  principles,  see  Cooley,  Mun.  Corp.  §§  22,  23. 

2  The  statement  of  facts  is  rewritten  and  part  of  the  opinion  of  Cooley,  J. 
and  the  opinions  of  Campbell,  C.  J.,  and  Christiancy  and  Graves,  JJ.,  an 
Dmitted. 


LEGISLATIVE   CONTROL  IN   GENERAL 


37 


of  right  which,  unless  I  wholly  misunderstand  it,  would  justify  that 
body  in  taking  to  itself  the  entire  and  exclusive  government  of  the 
city,  and  the  appointment  of  all  its  officers,  excepting  only  the  ju- 
dicial, for  which,  by  the  Constitution,  other  provision  is  expressly 
made.  And  the  question  broadly  and  nakedly  stated,  can  be  noth- 
ing short  of  this :  whether  local  self-government  in  this  state  is  or 
is  not  a  mere  privilege,  conceded  by  the  legislature  in  its  discretion, 
and  which  may  be  withdrawn  at  any  time  at  pleasure.  I  state  the 
question  thus  broadly  because,  notwithstanding  the  able  arguments 
made  in  this  case,  and  after  mature  deliberation,  I  can  conceive  of 
no  argument  in  support  of  the  legislative  authority  which  wall  stop 
short  of  this  plenary  and  sovereign  right. 

Now  it  must  be  conceded,  that  the  judicial  decisions  and  law  writ- 
ers generally  assert  that  the  state  creates  the  municipal  bodies,  en- 
dows them  with  such  of  the  functions  of  corporate  life  and  entrusts 
them  with  such  share  in  the  local  government,  as  to'  the  legislative 
judgment  shall  seem  best;  that  it  controls  and  regulates  their  action 
while  they  exist,  subjects  them  to  such  changes  as  public  policy  may 
dictate,  and  abolishes  them  at  discretion ;  in  short  that  the  corporate 
entities  are  mere  agencies  which  the  state  employs  for  the  conven- 
ience of  government,  clothing  them  for  the  time  being  with  a  por- 
tion of  its  sovereignty,  but  recalling  the  whole  or  any  part  thereof 
whenever  the  necessity  or  usefulness  of  the  delegation  is  no  longer 
apparent.  This  I  understand  to  be  the  accepted  theory  of  state 
constitutional  law  as  regards  the  municipal  governments.  We  sel- 
dom have  occasion  to  inquire  whether  this  amplitude  of  legislative 
authority  is  or  is  not  too  strongly  expressed,  for  the  reason  that  its 
exercise  is  generally  confined  within  such  bounds  as  custom  has 
pointed  out,  so  that  no  question  is  made  concerning  it.  But  such 
maxims  of  government  are  very  seldom  true  in  anything  more  than 
a  general  sense;  they  never  are  and  never  can  be  literally  accepted 
in  practice. 

Our  Constitution  assumes  the  existence  of  counties  and  townships, 
and  evidently  contemplates  that  the  state  shall  continue  to  be  sub- 
divided as  it  has  hitherto  been ;  but  it  nowhere  expressly  provides 
that  every  portion  of  the  state  shall  have  county  or  township  organ- 
izations. It  names  certain  ofiiccrs  which  are  to  be  chosen  for  these 
subdivisions,  and  confers  upon  the  people  the  right  to  choose  them  ; 
but  it  does  not  in  general  define  their  duties,  nor  in  terms  preclude 
the  legislature  from  establishing  new  offices,  and  giving  to  the  in- 
cumbents the  general  management  of  municipal  afifairs.  If,  there- 
fore, no  restraints  arc  imposed  upon  legislative  discretion  beyond 
these  specifically  stated,  the  town.ship  and  county  government  of 
any  portion  of  the  state  might  be  abolished,  and  the  people  be  sub- 
jected to  the  rule  of  commissions  appointed  at  the  capital.  The  peo- 
ple of  such  portion  might  thus  be  kept  in  a  state  of  pupilage  and 


38  LEGISLATIVE    CONTROL 

dependence  to  any  extent,  and  for  any  period  of  time  the  state  might 
choose. 

The  doctrine  that  within  any  general  grant  of  legislative  power  by 
the  Constitution  there  can  be  found  authority  thus  to  take  from  the 
people  the  management  of  their  local  concerns,  and  the  choice,  di- 
rectly or  indirectly,  of  their  local  officers,  if  practically  asserted, 
would  be  somewhat  .startling  to  our  people,  and  would  be  likely  to 
lead  hereafter  to  a  more  careful  scrutiny  of  the  charters  of  govern- 
ment framed  by  them,  lest  some  time,  by  an  inadvertent  use  of 
words,  they  might  be  found  to  have  conferred  upon  some  agency  of 
their  own  the  legal  authority  to  take  away  their  liberties  altogether. 
If  we  look  into  the  several  state  constitutions  to  see  what  verbal  re- 
strictions have  heretofore  been  placed  upon  legislative  authority  in 
this  regard,  we  shall  find  them  very  few  and  simple.  We  have  taken 
great  pains  to  surround  the  life,  liberty,  and  property  of  the  individ- 
ual with  guaranties,  but  we  have  not,  as  a  general  thing,  guarded 
local  government  with  similar  protections.  We  must  assume  either 
an  intention  that  the  legislative  control  should  be  constant  and  ab- 
solute, or,  on  the  other  hand,  that  there  are  certain  fundamental 
principles  in  our  general  framework  of  government,  which  are  with- 
in the  contemplation  of  the  people  when  they  agree  upon  the  writ- 
ten charter,  subject  to  which  the  delegations  of  authority  to  the  sev- 
eral departments  of  government  have  been  made.  That  this  last 
is  the  case,  appears  to  me  too  plain  for  serious  controversy.  The 
implied  restrictions  upon  the  power  of  the  legislature,  as  regards 
local  government,  though  their  limits  may  not  be  so  plainly  defined 
as  express  provisions  might  have  made  them,  are  nevertheless  equal- 
ly imperative  in  character,  and  whenever  we  find  ourselves  clearly 
within  them,  we  have  no  alternative  but  to  bow  to  their  authority. 
The  Constitution  has  been  framed  with  these  restrictions  in  view, 
and  we  should  fall  into  the  grossest  absurdities  if  we  undertook  to 
construe  that  instrument  on  a  critical  examination  of  the  terms  em- 
ployed, while  shutting  our  eyes  to  all  other  considerations. 

The  circumstances  from  which  these  implications  arise  are :  First, 
that  the  Constitution  has  been  adopted  in  view  of  a  system  of  local 
government,  well  understood  and  tolerably  uniform  in  character, 
existing  from  the  very  earliest  .settlement  of  the  country,  never  for  a 
moment  suspended  or  displaced,  and  the  continued  existence  of 
which  is  assumed ;  and,  second,  that  the  liberties  of  the  people  have 
generally  been  supposed  to  spring  from,  and  be  dependent  upon, 
that  system. 

De  Tocqueville  speaks  of  our  system  of  local  government  as  the 
American  system,  and  contrasts  it  forcibly  with  the  French  idea  of 
centralization,  under  the  influence  of  which  constitutional  freedom 
has  hitherto  proved  impossible.  Democracy  in  America,  c.  5.  Lieb- 
er  makes  the  same  comparison,  and  shows  that  a  centralized  govern- 


LEGISLATIVE    CONTROL   IN   GENEHAL  39 

merit,  though  by  representatives  freely  chosen,  must  be  despotic,  as 
any  other  form  of  centralization  necessarily  is.  "Self-government," 
he  says,  "means  everything  for  the  people  and  by  the  people,  con- 
sidered as  the  totality  of  organic  institutions,  constantly  evolving  in 
their  character  as  all  organic  life  is ;  but  not  a  dictatorial  multitude. 
Dictating  is  the  rule  of  the  army,  not  of  liberty ;  it  is  the  destruction 
of  individuality."  Civil  Liberty  and  Self-Government,  c.  21.  The 
writer  first  named,  speaking  of  the  New  England  township  govern- 
ment, whose  system  we  have  followed  in  the  main  says:  "In  this 
part  of  the  union  the  impulsion  of  political  activity  was  given  in 
the  townships ;  and  it  may  almost  be  said  that  each  of  them  original- 
ly formed  an  independent  nation.  When  the  kings  of  England  as- 
serted their  supremacy,  they  were  contented  to  assume  the  central 
power  of  the  state.  The  townships  of  New  England  remained  as 
they  were  before ;  and,  although  they  are  now  subject  to  the  state, 
they  were  at  first  scarcely  dependent  upon  it.  It  is  important  to 
remember  that  they  have  not  been  invested  with  privileges,  but  that 
they  seem,  on  the  contrary,  to  have  surrendered  a  portion  of  their 
independence  to  the  state.  The  townships  are  only  subordinate  to 
the  states  in  those  interests,  which  I  shall  term  social,  as  they  are 
common  to  all  the  citizens.  They  are  independent  in  all  that  con- 
cerns themselves ;  and  among  the  inhabitants  of  New  England,  I 
believe  that  not  a  man  is  to  be  found  who  would  acknowledge  that 
the  state  has  any  right  to  interfere  in  their  local  interests."  Democ- 
racy in  America,  ubi  supra.  Now,  if  this  author  is  here  speaking  of 
the  theory  of  our  institutions,  he  is  in  error.  It  is  not  the  accepted 
theory  that  the  states  have  received  delegations  of  power  from 
independent  towns ;  but  the  theory  is,  on  the  other  hand,  that  the 
state  governments  precede  the  local,  create  the  latter  at  discretion, 
and  endow  them  with  corporate  life.  But,  historically,  it  is  as  diffi- 
cult to  prove  this  theory  as  it  would  be  to  demonstrate  that  the 
origin  of  government  is  in  compact,  or  that  title  to  property  comes 
from  occupancy.  The  historical  fact  is,  that  local  governments 
universally,  in  this  country,  were  either  simultaneous  with,  or  pre- 
ceded the  more  central  authority.  In  Massachusetts,  originally  a 
democracy,  the  two  may  be  said  to  have  been  at  first  identical ;  but 
when  the  colony  became  a  representative  government,  and  new 
bands  pushed  out  into  the  wilderness,  they  went  bearing  with  them 
grants  of  land  and  authority  for  the  conduct  of  their  local  affairs. 
Hutchinson's  Massachusetts  Bay,  c.  1 ;  Washburn's  Jud.  Hist,  of 
Mass.  c.  1 ;  Body  of  Liberties,  §§  62,  66,  72;  Elliott's  New  England, 
vol.  4,  pp.  425,  427. 

But  in  Connecticut  the  several  settlements  originated  their  own 
governments,  and  thr)ugh  thasc  were  doubtless  very  imperfect  and 
informal,  they  were  sufficient  for  the  time  being,  and  the  central 
govrrnnient  was  later  in  point  of  time.     Trumbull's  Hist,  of  Conn. 


40  LEGISLATIVE    CONTROL 

vol.  1,  pp.  132,  498;  Palfrey's  New  England,  vol.  1,  p.  454.  What 
the  colony  did  was  only  to  confer  charters,  under  which  the  town 
authority  would  be  administered  within  agreed  limits  and  possibly 
with  more  regularity  than  before.  In  Rhode  Island  it  is  also  true 
that  township  organization  was  first  in  order  of  time.  Arnold's 
Hist,  of  R.  I.  c.  7.  This  author  justly  remarks,  that  when  the  char- 
ter of  Rhode  Island  was  suspended  to  bring  her  under  the  dominion 
of  Andros,  "the  American  system  of  town  governments,  which  ne- 
cessity had  compelled  Rhode  Island  to  initiate  fifty  years  before,  be- 
came the  means  of  preserving  the  liberty  of  the  individual  citizen 
when  that  of  the  state,  or  colony,  was  crushed."  Vol.  1,  p.  487.  So 
in  Vermont  the  people  not  only  for  a  time  conducted  all  their  pub- 
lic affairs  in  towns  and  plantations,  through  committees,  officers, 
and  leaders,  nominally  appointed  and  submitted  to  by  general  con- 
sent and  approbation,  but  they  carried  on  their  controversy  with 
New  York  for  some  )^ears,  without  any  other  organization.  Wil- 
liams' Hist,  of  Vermont,  vol.  2,  p.  163.  In  New  Jersey,  as  in  Massa- 
chusetts, towns  were  chartered  in  connection  with  grants  of  land, 
and,  in  some  instances,  those  which  were  made  by  Nichols,  adverse 
to  the  proprietary,  were  suffered  to  remain  after  his  authority  was 
superseded.  See  instances  in  Mulford's  Hist,  of  N.  J.  pp.  143-144. 
The  charter  to  Lord  Baltimore  plainly  recognized  local  government 
in  the  provision  requiring  the  laws  and  ordinances  established  to  con- 
form to  the  laws,  statutes,  or  rights  of  England.  Bozman's  Hist,  of 
Maryland,  p.  290.  And  county  authorities  seem  to  have  existed 
from  the  very  first,  though  their  statutory  organization,  if  any  they 
had,  cannot  be  traced.  Bozman,  pp.  299-303.  But  it  cannot  be 
necessary  to  particularize  further.  The  general  fact  was,  that  wheth- 
er the  colonial  or  local  authority  should  originate  first,  depended 
entirely  upon  circumstances  which  might  make  the  one  or  the  other 
the  more  immediate  need.  But  when  both  were  once  established 
they  ran  parallel  to  each  other,  as  they  were  meant  to  do,  for  all 
time ;  and  what  Mr.  Arnold  says  of  Rhode  Island  may  be  said  gen- 
erally of  the  eastern  and  middle  states  that  the  attempt  of  the  last 
two  Stuarts  to  overthrow  their  liberties  was  defeated  by  means  of 
the  local  organizations.  The  scheme  tried  first  in  England,  to  take 
away  the  corporate  charters  in  order  to  make  the  corporators  more 
dependent  on  the  crown,  and  to  restrain  them  from  political  action 
in  opposition  to  the  court  party,  found,  in  America,  the  colonial 
charters  alone  within  the  reach  of  arbitrary  power;  and  though 
these  were  taken  away  or  suspended,  it  was  only  with  such  protest 
and  resistance  as  saved  to  the  people  the  town  governments.  In 
Massachusetts  it  was  even  insisted  by  the  people's  deputies  that,  to 
surrender  local  government  was  contrary  to  the  sixth  command- 
ment, for,  said  they,  "men  may  not  destroy  their  political  any  more 
than  their  natural  lives."     So  it  is  recorded  they  clung  to  "the  civil 


LEGISLATIVE    CONTROL  IN    GENERAL  41 

liberties  of  New  England"  as  "part  of  the  inheritance  of  their 
fathers."  Palfrev's  New  England,  vol.  3,  pp.  381-383 ;  Bancroft's 
U.  S.  vol.  2,  pp.  '125-127;  Mass.  Hist.  Col.  XXI,  74-81.  The  whole 
contest  with  Andros,  as  well  in  New  England,  as  in  New  York  and 
New  Jersey,  was  a  struggle  of  the  people  in  defense  of  the  right  of 
local  government.  "Everywhere,"  says  Dunlap,  "the  people  strug- 
gled for  their  rights  and  deserved  to  be  free."  Hist,  of  N.  Y,  vol. 
1,  p.  133;  and  see  Trumbull's  Hist,  of  Conn.  vol.  1,  c.  15. 

I  have  confined  this  examination  to  the  states  which  have  in- 
fluenced our  own  polity  most ;  but  the  same  principle  was  recognized 
and  acted  on  elsewhere.  The  local  governments,  however,  were  less 
complete  in  the  states  further  south,  and  this,  with  some  of  their 
leading  statesmen,  was  a  source  of  regret. 

Mr.  Jefferson,  writing  to  Governor  Tyler  in  1810,  speaks  of  the 
two  great  measures  which  he  has  at  heart,  one  of  which  is  the  divi- 
sion of  counties  into  hundreds.  "These  little  republics,"  he  says, 
"would  be  the  main  strength  of  the  great  one.  We  owe  to  them  the 
vigor  given  to  our  Revolution,  in  its  commencement,  in  the  eastern 
states.  *  *  *  Could  I  once  see  this,  I  should  consider  it  as  the 
dawn  of  the  salvation  of  the  republic."  Jefferson's  Works,  vol.  5, 
p.  525.  Mr.  Jefferson  understood  thoroughly  the  truth,  so  quaintly 
expressed  by  Bacon,  when  he  said  of  a  burden  imposed,  as  com- 
pared to  one  freely  assumed,  that  "it  may  be  all  one  to  the  purse, 
but  it  worketh  diversely  upon  the  courage." 

Such  are  the  historical  facts  regarding  local  government  in  Ameri- 
ca. Our  traditions,  practice,  and  expectations  have  all  been  in  one 
direction.  And  when  we  go  beyond  the  general  view  to  inquire 
into  the  details  of  authority,  we  find  that  it  has  included  the  power  to 
choose  in  some  form  the  persons  who  are  to  administer  the  local 
regulations.  Instances  to  the  contrary,  except  where  the  power  to 
be  administered  was  properly  a  state  power,  have  been  purely  ex- 
ceptional. The  most  prominent  of  these  was  the  case  of  the  mayor 
of  New  York,  who  continued,  for  a  long  time  after  the  Revolution, 
the  appointee  of  the  governor.  But  this  mode  of  choice  originated 
when  the  city  was  the  scat  of  colonial  government,  and  while  it 
constituted  a  large  part  of  the  colony,  and  the  office  was  afterwards 
of  such  dignity  and  importance,  and  was  vested  with  so  many  gen- 
eral powers,  that  one  of  the  first  statesmen  of  the  nation  did  not  hesi- 
tate to  resign  a  seat  in  the  senate  of  the  United  States  to  accept  it. 
Hammond's  Pol.  Hist,  of  N.  Y.  vol.  1,  p.  197.  Moreover,  the  first 
Constitution  of  New  York  was,  in  important  particulars,  exception- 
al. That  state  had  at  the  time  a  powerful  aristocratic  clement,  by 
which  its  first  institutions  were  in  a  great  measure  shaped;  and  a 
distrust  of  popular  authority  was  manifest.  It  is  scarcely  needful 
to  say  that  features  of  that  character  disappeared  when  the  Con- 
stitution was  revised. 


42  LEGISLATIVE    CONTROL 

For  those  classes  of  officers  whose  duties  are  general — such  as 
the  judges,  the  officers  of  militia,  the  superintendents  of  police,  of 
quarantine,  and  of  ports,  by  whatever  name  called — provision  has 
to  a  greater  or  less  extent,  been  made  by  state  appointment.  But 
these  are  more  properly  .state  than  local  officers ;  they  perform  du- 
ties for  the  state  in  localities,  as  collectors  of  internal  revenue  do  for 
the  general  government ;  and  a  local  authority  for  their  appointment 
does  not  make  them  local  officers  when  the  nature  of  their  duties  is 
essentially  general.  In  the  case  before  us,  the  officers  in  question 
involve  the  custody,  care,  management,  and  control  of  the  pave- 
ments, sewers,  waterworks,  and  public  buildings  of  the  city,  and  the 
duties  are  purely  local.  The  state  at  large  may  have  an  indirect  in- 
terest in  an  intelligent  honest,  upright,  and  prompt  discharge  of 
them,  but  this  is  on  commercial  and  neighborhood  grounds  rather 
than  political,  and  is  not  much  greater  or  more  direct  than  if  the 
state  Hne  excluded  the  city.  Conceding  to  the  state  the  authority  to 
shape  the  municipal  organizations  at  its  will,  it  would  follow  that 
a  similar  power  of  control  might  be  exercised  by  the  state  as  re- 
gards the  property  which  the  corporation  has  acquired,  or  the  rights 
in  the  nature  of  property  which  have  been  conferred  upon  it.  There 
are  cases  which  assert  such  power,  but  they  are  opposed  to  what 
seem  to  me  the  best  authorities  as  well  as  the  .soundest  reason. 
The  municipality,  as  an  agent  of  government  is  one  thing;  the  cor- 
poration, as  an  owner  of  property  is  in  some  particulars  to  be  re- 
garded in  a  very  different  light.  The  Supreme  Court  of  the  United 
States  held  at  an  early  day  that  grants  of  property  to  public  corpo- 
rations could  not  be  resumed  by  the  sovereignty.  Terrett  v.  Taylor, 
9  Cranch,  43,  3  L.  Ed.  650;  Town  of  Pawlet  v.  Clark,  9  Cranch, 
292,  3  L.  Ed.  735.  And  see  Dartmouth  College  v.  Woodward,  4 
Wheat.  694-698,  4  L.  Ed.  629. 

When  the  state  deals  with  a  municipal  corporation  on  the  footing 
of  contract,  it  is  said  by  Trumbull,  J.,  in  Richland  v.  Lawrence,  12 
111.  8,  the  municipality  is  to  be  regarded  as  a  private  company.  In 
Detroit  v.  Corey,  9  Mich.  165,  80  Am.  Dec.  78,  Manning,  J., 
bases  his  opinion  that  the  city  was  Hable  for  an  injury  to  an  in- 
dividual, occasioned  by  falling  into  an  excavation  for  a  sewer,  care- 
lessly left  open,  upon  the  fact  that  the  sewers  were  the  private  prop- 
erty of  the  city,  in  which  the  outside  public  or  people  of  the  state 
at  large  had  no  concern.  In  Warren  v,  Lyons,  22  Iowa,  351,  it 
was  held  incompetent  for  the  legislature  to  devote  to  other  public 
uses  land  which  had  been  dedicated  for  a  public  square.  In  State 
v.  Haben,  22  Wis.  660,  an  act  appropriating  moneys  collected  for  a 
primary  school  to  the  erection  of  a  state  normal  school  building 
in  the  same  city  was  held  void.  Other  cases  might  be  cited,  but  it 
seems  not  to  be  needful.  They  rest  upon  the  well-understood  fact 
that  these  corporations  are  of  a  twofold  character:     the  one  public 


LEGISLATIVE   CONTROL   IN   GENERAL  43 

as  regards  the  state  at  large,  in  so  far  as  they  are  its  agents  in  gov- 
ernment ;  the  other  private,  in  so  far  as  they  are  to  provide  the  local 
necessities  and  conveniences  for  their  own  citizens;  and  that  as  to 
the  acquisitions  they  make  in  the  latter  capacity  as  mere  corpora- 
tions, it  is  neither  just,  nor  is  it  competent,  for  the  legislature  to 
take  them  away,  or  to  deprive  the  local  community  of  the  benefit 
thereof.  There  may  come  a  time  when  from  necessity  the  state 
must  interpose.  The  state  may  change  municipal  boundaries;  and 
then  a  division  of  the  corporate  property  may  be  needful.  The 
state  may  take  away  the  corporate  powers,  and  then  the  property 
must  come  to  the  state  as  trustee  for  the  parties  concerned.  In 
either  of  these  cases,  undoubtedly,  state  action  becomes  essential; 
and  the  property  may  be  disposed  of  according  to  the  legislative 
judgment  and  sense  of  justice;  but  even  then  the  appropriation 
must  have  regard,  so  far  as  the  circumstances  of  the  case  will  admit, 
to  the  purposes  for  which  the  property  was  acquired,  and  the  inter- 
est of  those  who  were  corporators  when  the  necessity  for  state  inter- 
vention arose. 

In  view  of  these  historical  facts,  and  of  these  general  principles, 
the  question  recurs  whether  our  state  Constitution  can  be  so  con- 
strued as  to  confer  upon  the  legislature  the  power  to  appoint  for  the 
municipalities  the  officers  who  are  to  manage  the  property,  interests, 
and  rights  in  which  their  own  people  alone  are  concerned.     *     *     * 

Constitutional  freedom  certainly  does  not  consist  in  exemption 
from  governmental  interference  in  the  citizen's  private  affairs ;  in 
his  being  unmolested  in  his  family,  suffered  to  buy,  sell,  and  enjoy 
property,  and  generally  to  seek  happiness  in  his  own  way.  All  this 
might  be  permitted  by  the  most  arbitrary  ruler,  even  though  he  al- 
lowed his  subjects  no  degree  of  political  liberty.  The  government 
of  an  oligarchy  may  be  as  just,  as  regardful  of  private  rights,  and 
as  little  burdensome  as  any  other ;  but  if  it  were  sought  to  establish 
such  a  government  over  our  cities  by  law  it  would  hardly  do  to  call 
upon  a  protesting  pcoj^lc  to  show  where  in  the  Constitution  the 
power  to  establish  it  was  prohil)ited ;  it  would  be  necessary,  on  the 
other  hand,  to  point  out  to  them  where  and  by  what  unguarded 
words  the  power  had  been  conferred.  Some  things  are  too  plain  to 
be  written.  If  this  charter  of  state  government  which  we  call  a 
Constitution,  were  all  there  was  of  constitutional  connnaiid  ;  if  tlic 
usages,  the  customs,  the  maxims,  that  have  sprung  from  the  hal)its 
of  life,  modes  of  thought,  methods  of  trying  facts  by  the  ncighbor- 
hocKJ,  and  mutual  responsibility  in  ncigliborhood  interests,  the  pre- 
cepts which  have  come  from  the  revolutions  which  overturned  tyr- 
annies, the  sentiments  of  manly  independence  and  self-coiilrul  wliicli 
impelled  our  ancestors  to  summon  the  local  comnumity  to  redress 
local  evils,  instead  of  relying  upon  king  or  legislature  at  a  distance 
to  do  so — if  a  recognition  of  all  these  were  to  be  stricken  from  the 


44  LEGISLATIVE    CONTROL 

body  of  our  constitutional  law,  a  lifeless  skeleton  mi^lit  remain,  but 
the  living  spirit,  that  which  gives  it  force  and  attraction,  which 
makes  it  valuable  and  draws  to  it  the  affections  of  the  people,  that 
which  distinguishes  it  from  the  numberless  constitutions,  so  called, 
which  in  Europe  have  been  set  up  and  thrown  down  within  the  last 
hundred  years,  many  of  which,  in  their  expressions,  have  seemed 
equally  fair  and  to  possess  equal  promise  with  ours,  and  have  only 
been  wanting  in  the  support  and  vitality  which  these  alone  can 
give — this  living  and  breathing  spirit,  which  supplies  the  interpre- 
tation of  the  words  of  the  written  charter,  would  be  utterly  lost  and 
Sfone.     *     *     * 

The  state  may  mould  local  institutions  according  to  its  views  of 
policy  or  expediency;  but  local  government  is  matter  of  absolute 
right;  and  the  state  cannot  take  it  away.  It  would  be  the  boldest 
mockery  to  speak  of  a  city  as  possessing  municipal  liberty  where 
the  state  not  only  shaped  its  government,  but  at  discretion  sent  in 
its  own  agents  to  administer  it ;  or  to  call  that  system  one  of  con- 
stitutional freedom  under  which  it  should  be  equally  admissible  to 
allow  the  people  full  control  in  their  local  affairs,  or  no  control  at  all. 

What  I  say  here  is  with  the  utmost  respect  and  deference  to  the 
legislative  department,  even  though  the  task  I  am  called  upon  to  per- 
form is  to  give  reasons  why  a  blow  aimed  at  the  foundation  of  our 
structure  of  liberty  should  be  warded  off.  Nevertheless,  when  the 
state  reaches  out  and  draws  to  itself  and  appropriates  the  powers 
which  from  time  immemorial  have  been  locally  possessed  and  exer- 
cised, and  introduces  into  its  legislation  the  centralizing  ideas  of 
continental  Europe,  under  which  despotism,  whether  of  monarch 
or  commune,  alorre  has  flourished,  we  seem  forced  back  upon  and 
compelled  to  take  up  and  defend  the  plainest  and  most  primary 
axioms  of  free  government,  as  if  even  in  Anglican  liberty,  which  has 
been  gained  step  by  step,  through  extorted  charters  and  bills  of 
rights,  the  punishment  of  kings  and  the  overthrow  of  dynasties, 
nothing  was  settled  and  nothing  established. 

But  I  think  that,  so  far  as  is  important  to  a  decision  of  the  case 
before  us,  there  is  an  express  recognition  of  the  right  of  local  au- 
thority by  the  Constitution.  That  instrument  provides  (article  15, 
§  14)  that  "judicial  officers  of  cities  and  villages  shall  be  elected; 
and  all  other  officers  shall  be  elected  or  appointed  at  such  time  and 
in  such  manner  as  the  legislature  may  direct."  It  is  conceded  that 
all  elections  must,  under  this  section,  be  by  the  electors  of  the  mu- 
nicipality. But  it  is  to  be  observed  that  there  is  no  express  declar- 
ation to  that  effect  to  be  found  in  the  Constitution ;  and  it  may  well 
be  asked  what  there  is  to  localize  the  elections  any  more  than  the 
appointments.  The  answer  must  be,  that  in  examining  the  whole 
instrument  a  general  intent  is  found  pervading  it,  which  clearly  in- 
dicated that  these  elections  are  to  be  by  the  local  voters,  and  not 


PUBLIC   FUNDS    AND   REVENUES  45 

"by  the  legislature,  or  by  the  people  of  a  larger  territory  than  that 
immediately   concerned.     *     *     * 

So  far,  then,  as  the  act  in  question  undertakes  to  fill  the  new  offices 
with  permanent  appointees,  it  cannot  be  sustained  either  on  general 
principles  or  on  the  words  of  the  Constitution.     *     *     * 


II.  Offices  and  Officers" 


PEOPLE  ex  rel  LE  ROY  v.  HURLBUT. 

(Supreme  Court  of  Michigan,  1871.     24  Mich.  44,  9  Am.  Rep.  103.) 
See  ante,  p.  36,  for  a  report  of  the  case. 


III.  Public  Funds  and  Revenues* 


GUTZWELLER  v.  PEOPLE. 

(Supreme  Court  of  Illinois,  1852.     14  111.  142.) 

Caton,  J.  We  cannot  persuade  ourselves  into  a  doubt  of  the 
authority  of  the  legislature  to  take  from  the  city  of  Alton  the  power  to 
grant  licenses  to  sell  spirituous  liquors.  That  right  was  conferred  by 
the  city  charter  passed  in  1837,  and  the  receipts  for  such  licenses  con- 
tributed towards  a  fund  for  the  support  of  paupers  within  the  city. 
It  is  within  the  undoubted  jurisdiction  of  the  legislature  to  determine 
within  what  districts  of  country  the  inhabitants  shall  be  associated 
together,  for  the  purpose  of  supporting  the  paupers  within  the  pre- 
scribed limits.  Whether  such  district  shall  be  a  town,  city,  or  county, 
or  even  the  whole  state,  is  for  the  lawmaking  power  to  determine. 
It  was  as  much  the  right  of  the  legislature  to  say  that  the  city  should 
support  her  paupers,  as  that  the  county  should  support  hers.  So,  too, 
it  was  for  the  legislature  to  determine  who  should  issue  licenses  to 
sell  strong  liquors,  and  to  si^ecify  wlictbcr  the  money  thus  raised 
.should  be  devoted  to  the  su])port  of  paupers,  or  the  maintenance  of 
the  police,  or  to  any  other  purpose.  It  gave  the  city  no  more  a  vested 
right  to  issue  licenses,  because  the  legislature  specified  the  objects  to 
which  the  money  should  be  applied,  than  if  it  bad  been  put  into  the 

8  For  discussiciii  of  priiniiHpH,  see  Coole.v,  Mini.  Corp.  §  24. 
*  For  di.scus.siou  of  principles,  see  Cooley,  Mun.  Corp.  §  25. 


46  LEGISLATIVE    CONTROL 

general  fund  of  the  city.  If  the  legislature  could  not  take  from  the 
city  authority  the  power  to  issue  licenses  it  certainly  had  no  right  to 
deprive  the  counties  of  the  same  authority.  Cities  are  as  much  the 
creatures  of  legislative  will  as  are  counties,  and  what  may  be  done 
with  the  one  they  have  authority  to  do  with  the  other.  Trustees  v. 
Tatnian,  13  111.  30,  and  notes. 

Was  it  the  intention  of  the  legislature,  by  the  law  of  1851,  to  de- 
prive the  city  of  Alton  of  the  right  which  she  had  hitherto  enjoyed 
of  granting  these  licenses?  The  language  of  the  law  is  so  explicit  that 
it  leaves  but  one  possible  answer  to  the  question.  After  prohibiting 
the  sale  and  prescribing  the  penalty  for  a  violation,  the  act,  in  the 
sixth  section,  provides,  that  "all  laws  and  parts  of  laws  authorizing 
licenses  to  be  granted  to  keep  groceries,  for  the  sale  of  vinous,  spiritu- 
ous, or  mixed  liquors,  are  hereby  repealed,  and  the  provisions  of  this 
act  shall  extend  to  all  incorporated  cities  or  towns  in  this  state,  any- 
thing in  their  charters  to  the  contrary  notwithstanding."  From  this 
it  is  too  plain  to  be  argued,  that  it  was  the  intention  of  the  legislature 
to  withdraw  all  authority  which  had  ever  been  conferred  upon  any 
subordinate  governmental  agencies  to  grant  licenses  for  the  sale  of 
liquor;  and  that  thenceforth  the  sale  of  ardent  spirits  in  less  quanti- 
ties than  one  quart  should  be  absolutely  prohibited.  By  this  law  the 
power  is  as  much  taken  from  the  city  of  Alton,  as  if  she  had  been  ex- 
pressly named  in  the  act.  It  was  pro  tanto  a  repeal  of  the  city  charter 
and  was  for  that  purpose  as  effectual  as  if  the  entire  charter  had  been 
taken  away;  and  if  the  legislature  had  the  right  to  do  the  latter,  they 
certainly  had  authority  to  do  the  former.  The  license  set  up  as  a  de- 
fense in  this  case  was  issued  without  authority  of  the  law,  and  can 
afford  no  protection  to  the  defendant  for  the  commission  of  the  act 
which  was  in  express  violation  of  the  law. 

The  judgment  of  the  circuit  court  must  be  affirmed.  Judgment  af- 
firmed. 


CITY  OF  NEW  ORLEANS  v.  CLARK. 

(Supreme  Court  of  United  States,  1877.    95  U.  S.  644,  24  L.  Ed.  521.) 

Mr.  Justice  FiSld.^  This  w^as  an  action  upon  several  coupons 
for  interest  annexed  to  bonds  issued  by  the  late  city  of  Carrollton,  in 
Louisiana,  to  the  Jefferson  City  Gas-Light  Company,  a  corporation 
created  under  the  laws  of  that  state,  for  laying  gas  pipes  through 
certain  streets  of  the  city,  and  introducing  gas  for  the  use  of  its  citi- 
zens. The  bonds  were  indorsed  by  the  president  of  the  company,  with 
its  guaranty,  for  the  payment  of  their  principal  and  interest.     *     *     * 

The  bonds  were  issued  pursuant  to  an  ordinance  of  the  city,  which 
provided  for  the  payment  of  the  interest  thereon,  but  made  no  provi- 

5  Part  of  the  opinion  is  omitted. 


PUBLIC   FUNDS   AND   REVENUES  47 

sion  for  the  payment  of  the  principal;  and  for  this  omission,  and 
because  they  were  issued  in  aid  of  a  private  corporation,  their  vahdi- 
ty  was  questioned  by  the  city  of  New  Orleans,  upon  which  the  liabili- 
ties of  Carrollton  were  cast  upon  its  annexation  to  that  city ;  and  as 
it  was  contended  in  answer  to  this  position  that  the  legislature  had 
subsequently,  in  the  act  of  annexation,  legalized  the  issue,  the  power 
of  the  legislature  to  do  this  was  denied,  but  the  Circuit  Court  held 
that  the  legislature  possessed  the  power ;  and  the  city  of  New  Orleans 
was  adjudged  bound  to  pay  the  bonds. 

The  record  shows  that  the  bonds  were  issued  after  the  work  had 
been  done  for  which  the  contract  was  made  and  the  gas  had  been  in- 
troduced into  the  city,  and  that  they  were  transferred  to  the  plaintiff 
for  a  valuable  consideration.     *     *     * 

The  invalidity  of  the  bonds  was  asserted,  as  already  stated,  on  two 
grounds :  first,  that  they  were  issued  in  aid  of  a  private  corporation ; 
and,  second,  that  the  city  of  Carrollton,  in  issuing  them,  created 
a  debt,  without  providing  in  the  same  ordinance  the  means  of  paying 
its  principal.  The  first  of  these  grounds  is  not  one  which  aft'ects  the 
validity  of  the  bonds.  A  private  corporation,  as  well  as  individuals, 
may  be  employed  by  a  city  in  the  construction  of  works  needed  for 
the  health,  comfort,  and  convenience  of  its  citizens;  and,  though 
such  works  may  be  used  by  the  corporation  for  its  own  gain,  yet,  as 
they  advance  the  public  good,  the  corporation  may  be  properly  aided 
in  their  construction  by  the  city ;  and  for  that  purpose  its  obligations 
may  be  issued,  unless  some  constitutional  or  legislative  provision 
stands  in  the  way.  The  bonds  here  were  not  given  to  the  company  as 
a  gratuity,  but  for  a  valuable  consideration;  and  if  the  company  failed 
to  pay  them  at  maturity,  and  their  payment  was  made  by  the  city,  the 
gas-works  were  to  become  the  property  of  the  city. 

The  second  of  these  grounds  is  not  without  force.  An  act  of  the 
legislature  of  Louisiana,  passed  in  ]\Iarch,  1855,  had  declared  that  the 
constituted  authorities  of  incorporated  towns  and  cities  in  the  state 
should  not  thereafter  "have  power  to  contract  any  debt  or  pecuniary 
liabihty,  without  fully  providing  in  the  ordinance  creating  the  debt 
the  means  of  paying  the  principal  and  interest  of  the  debt  or  con- 
tract." This  enactment  imposed  a  restriction  ui)on  the  creation  of 
liabilities  by  municipal  bodies,  which  could  not  be  disregarded.  It  was 
intended  to  keep  their  expenditures  within  their  means ;  and  its  effi- 
cacy in  that  respect  would  be  entirely  dissipated,  if  debts  contracted 
in  violation  of  it  were  held  legally  binding  upon  the  municipalities. 

Assuming,  then,  that  the  bonds  were  invalid  for  the  omission  slated, 
they  still  represented  an  equitable  claim  against  the  city.  They  were 
issued  for  work  done  in  its  interest,  of  a  nature  which  the  city  re- 
quired for  the  convenience  of  its  citizens,  and  which  its  charter  au- 
thorized. It  was,  therefore,  competent  for  the  legislature  to  interfere 
and  impose  the  payment  of  the  claim  upon  the  city.     The  books  are 


48  LEGISLATIVE    CONTROL 

full  of  cases  where  claims,  just  in  themselves,  but  which,  from  some 
irregularity  or  omission  in  the  proceedings  by  which  they  were  cre- 
ated, could  not  be  enforced  in  the  courts  of  law,  have  been  thus  recog- 
nized and  their  payment  secured.  The  power  of  the  legislature  to  re- 
quire the  payment  of  a  claim  for  which  an  equivalent  has  been  re- 
ceived, and  from  the  payment  of  which  the  city  can  only  escape  on 
technical  grounds,  would  seem  to  be  clear.  Instances  will  readily 
occur  to  every  one,  where  great  wrong  and  injustice  would  be  done 
if  provision  could  not  be  made  for  claims  of  this  character.  For  ex- 
ample, services  of  the  highest  importance  and  benefit  to  a  city  may  be 
rendered  in  defending  it,  perhaps,  against  illegal  and  extortionate  de- 
mands; or  moneys  may  be  advanced  in  unexpected  emergencies  to 
meet,  possibly,  the  interest  on  its  securities  when  its  means  have  been 
suddenly  cut  off,  without  the  previous  legislative  or  municipal  sanc- 
tion required  to  give  the  parties  rendering  the  services  or  advancing 
the  moneys  a  legal  claim  against  the  city.  There  would  be  a  great 
defect  in  the  power  of  the  legislature  if  it  could  not  in  such  cases  re- 
quire payment  for  the  services,  or  a  reimbursement  of  the  moneys, 
and  the  raising  of  the  necessary  means  by  taxation  for  that  purpose. 
A  very  different  question  would  be  presented,  if  the  attempt  were 
made  to  apply  the  means  raised  to  the  payment  of  claims  for  which 
no  consideration  had  been  received  by  the  city. 

The  act  of  1874,  which  annexed  Carrollton  to  New  Orleans,  pro- 
vided that  all  property,  rights,  and  interests  of  every  kind  of  the 
former  city  should  be  vested  in  the  latter,  and  that  the  debts  and  lia- 
bilities of  Carrollton,  "including  the  funding  and  improvement  bonds, 
and  the  bonds  issued  to  the  Jefferson  City  Gas-Light  Company,  and 
known  as  gas  bonds,"  should  be  assumed  and  paid  by  the  city  of  New 
Orleans;  and  that  city  was  in  terms  declared  liable  therefor.  Inde- 
pendently of  this  legislation,  the  liabilities  of  Carrollton  would  have 
devolved  with  its  property  upon  New  Orleans  on  the  annexation  to 
that  city,  so  far,  at  least,  that  they  could  be  enforced  against  the  in- 
habitants and  property  brought  by  the  annexation  within  its  juris- 
diction. Broughton  v.  Pensacola,  93  U.  S.  266,  23  L.  Ed.  896.  Eq- 
uitable claims  which  had  existed  against  the  dissolved  city  would  con- 
tinue as  before,  and  be  equally  subject  to  legislative  recognition  and 
enforcement,  or  their  payment  might  be  required,  as  in  this  case,  by 
the  act  of  annexation.  The  power  of  taxation  which  the  legislature 
of  a  state  possesses  may  be  exercised  to  any  extent  upon  property 
within  its  jurisdiction,  except  as  specially  restrained  by  its  own  or  the 
federal  Constitution;  and  its  power  of  appropriation  of  the  moneys 
raised  is  equally  unlimited.  It  may  appropriate  them  for  any  pur- 
pose which  it  may  regard  as  calculated  to  promote  the  public  good. 
Of  the  expediency  of  the  taxation  or  the  wisdom  of  the  appropriation 
it  is  the  sole  judge.  The  power  which  it  may  thus  exercise  over  the 
revenues  of  the  state  it  may  exercise  over  the  revenues  of  a  city,  for 


OBLIGATIONS   IMPOSED   BY   LEGISLATURE  49 

any  purpose  connected  with  its  present  or  past  condition,  except  as 
such  revenues  may,  by  the  law  creating  them,  be  devoted  to  special 
uses ;  and,  in  imposing  a  tax,  it  may  prescribe  the  municipal  purpose  to 
which  the  moneys  raised  shall  be  applied.  A  city  is  only  a  political 
subdivision  of  the  state,  made  for  the  convenient  administration  of 
the  government.  It  is  an  instrumentality,  with  powers  more  or  less 
enlarged,  according  to  the  requirements  of  the  public,  and  which  may 
be  increased  or  repealed  at  the  will  of  the  legislature.  In  directing, 
therefore,  a  particular  tax  by  such  corporation,  and  the  appropriation 
of  the  proceeds  to  some  special  municipal  purpose,  the  legislature 
only  exercises  a  power  through  its  subordinate  agent  which  it  could 
exercise  directly ;  and  it  does  this  only  in  another  way  when  it  directs 
such  corporation  to  assume  and  pay  a  particular  claim  not  legally 
binding  for  want  of  some  formality  in  its  creation,  but  for  which  the 
corporation  has  received  an  equivalent.  People  ex  rel.  Blanding  v. 
Burr,  13  Cal.  343;  Town  of  Guilford  v.  Supervisors  of  Chenango 
County,  18  Barb.  (N.  Y.)  615;    s.  c,  13  N.  Y.  143. 

The  constitution  of  Louisiana  of  1868,  which  provides  that  no  re- 
troactive law  shall  be  passed,  does  not  forbid  such  legislation.  A  law 
requiring  a  municipal  corporation  to  pay  a  demand  which  is  without 
legal  obligation,  but  which  is  equitable  and  just  in  itself,  being  founded 
upon  a  valuable  consideration  received  by  the  corporation,  is  not  a 
retroactive  law, — no  more  so  than  an  appropriation  act  providing  for 
the  payment  of  a  pre-existing  claim.  The  constitutional  inhibition 
does  not  apply  to  legislation  recognizing  or  affirming  the  binding  ob- 
ligation of  the  state,  or  any  of  its  subordinate  agencies,  with  respect 
to  past  transactions.  It  is  designed  to  prevent  retrospective  legisla- 
tion injuriously  affecting  individuals,  and  thus  protect  vested  rights 
from  invasion. 

Judgment  affirmed. 


IV.  Obligations  Imposed  by  Legislature  « 


MERCHANTS'  NAT.  BANK  OF  ST.  PAUL  v.  CITY  OF  EAST 

GRAND  FORKS. 

(Supreme  Court  of  Minnesota,  1905.     94  Minn.  24G,  102  N.  W.  70:5.) 

Action  by  the  Merchants'  National  Bank  of  St.  Paul  against  the 
city  of  East  Grand  Forks.  Judgment  for  plaintiff,  and  defendant 
appeals. 

Jaggakd,  J.^  This  was  an  action  brought  against  the  city  of 
East  Grand  Forks  to  receiver  on   certain  warrants  issued  by  that 

•  For  (lisfusRlon  of  principles,  see  Cooley,  Mun.  Corp.  §§  20,  27. 
T  Tart  of  the  opinion  is  omitted. 
CooLEY  Casks  Mun.C- 


50  LEGISLATIVE    CONTROL 

city,  with  interest.  That  city  entered  into  a  contract  for'  paving 
certain  streets  with  one  Thornton.  As  the  work  progressed,  esti- 
mates due  and  payable  in  the  succeeding  month  were  furnished 
by  the  city  engineer,  and  were  allowed  by  the  city  council.  Upon 
them,  six  warrants  on  the  city  treasurer,  aggregating  $8,000,  were 
issued  to  the  contractor,  and  in  course  of  time  were  duly  presented 
for  payment.  Payment  was  refused  for  lack  of  funds.  The  treas- 
urer indorsed  the  warrants  as  registered,  and  as  drawing  interest 
until  presented  for  payment.  These  warrants  were  pledged  to  the 
plaintiff  as  collateral  security  for  loans,  and  became  its  absolute 
property  through  foreclosure  proceedings.  The  defenses  interposed 
were  (1)  the  illegality  of  the  contract;  and  (2)  the  contractor's 
failure  to  perform.  Upon  the  trial  the  court  made  rulings  as  to 
the  evidence,  and  finally  based  its  findings  of  fact  and  conclusions 
of  law  and  order  for  judgment  for  the  plaintiff,  in  the  full  amount 
claimed,  upon  the  proposition  that  the  contract  was  validated  and 
the  warrants  legalized  by  section  9  of  chapter  382,  p.  695,  of  the 
Laws  of  1903.     *     *     * 

2.  The  second  contention  of  the  defendant  was  that  a  vested 
cause  of  action  is  beyond  legislative  impairment,  and  that  a  vested 
right  to  an  existing  defense  is  equally  protected,  saving  only  those 
which  are  based  on  informalities  not  affecting  substantial  rights, 
and  which  do  not  touch  the  substance  of  the  contract,  and  are  not 
based  on  equity  and  justice.  Mr.  Justice  Matthews,  in  Pritchard 
V.  Norton,  106  U.  S.  132,  1  Sup.  Ct.  102,  27  L.  Ed.  104;  and  see 
Farnsworth  Loan  &  Realty  Co.  v.  Commonwealth  T.  L  &  T.  Co., 
84  Minn.  62,  86  N.  W.  877;  8  Cyc.  910,  911.  "Because,  in  the  nature 
of  things,  there  can  be  no  vested  right  to  violate  a  moral  duty  or 
resist  the  performance  of  a  moral  obligation."  Grinder  v.  Nelson, 
9  Gill  (Md.)  299,  52  Am.  Dec.  694.  The  decision  of  this  branch 
of  the  case  is  not,  however,  determined  by  limitations  placed  by  the 
Constitution  upon  the  power  of  the  Legislature  to  affect  private 
property.  The  question  here  is  whether  the  state  Legislature  has 
the  power  to  impose  upon  a  municipal  corporation  the  payment 
of  certain  disputed  obligations.  The  result  of  the  exercise  of  that 
discretion  is  upon  taxation.  Now,  it  is  well  settled  that  the  power 
which  the  Legislature  may  "exercise  over  the  revenues  of  the  state 
it  may  exercise  over  the  revenues  of  a  city  for  any  purpose  connected 
with  its  present  or  past  condition."  Mr.  Justice  Field  in  New 
Orleans  v.  Clark,  95  U.  S.  644-652,  24  L.  Ed.  521.  In  following 
this  case,  Mr.  Justice  Peckham  says  in  Guthrie  Nat.  Bank  v.  Guth- 
rie, 173  U.  S.  528-537,  19  Sup.  Ct.  513,  43  L.  Ed.  796:  "In  the  ex- 
ercise of  this  jurisdiction  over  municipal  corporations  by  the  state 
or  by  the  territorial  Legislature,  no  constitutional  principle  is  vio- 
lated. It  is  a  jurisdiction  which  has  been  customarily  exercised 
ever  since  the  foundation  of  the  government,  and  is  based  upon 


OBLIGATIONS   IMPOSED   BY   LEGISLATURE  51 

the  power  of  the  state,  as  sovereign,  to  itself  recognize,  or  compel 
any  of  its  political  subdivisions  to  recognize,  those  obligations 
which,  while  not  cognizable  in  any  court  of  law,  are  yet  based  upon 
considerations  so  thoroughly  equitable  and  moral  as  to  deserve 
and  compel  legislative  recognition."  And  in  Utter  v.  Franklin, 
172  U.  S.  416,  19  Sup.  Ct.  183,  43  L.  Ed.  498,  there  was  sustained 
the  action  of  Congress  in  validating  bonds  issued  by  a  territory, 
declared  void  because  not  necessary  to  the  administration  of  in- 
ternal affairs  (Lewis  v.  Pima  County,  155  U.  S.  54,  15  Sup.  Ct. 
22,  39  L.  Ed.  67),  in  a  suit  brought  before  the  passage  of  the  cura- 
tive act.  This  principle  has  been  recognized  and  enforced  in  this 
state.  State  v.  City  of  Lake  City,  25  Minn.  404;  Kunkle  v.  Town 
of  Franklin,  13  Minn.  127  (Gil.  119).  97  Am.  Dec.  226;  and  see 
Nash  V.  Lowrv.  Z7  Minn.  261,  ZZ  N.  W.  787;  Flynn  v.  Little  Falls 
E.  &  W.  Co., '74  Minn.  180,  17  N.  W.  38,  '78  N.  W.  106;  People 
V.  Burr,  13  Cal.  343;  Tow^n  v.  Supervisors,  13  N.  Y.  143;  Grover 
V.  Inhabitants  of  Pembroke,  11  Allen  (Alass.)  88;  Bartholomew 
V.  Town  of  Harwinton,  33  Conn.  408;  Booth  v.  Woodbury,  32 
Conn.  118;  Freeland  v.  Hastings,  10  Allen  (^Mass.)  570;  Schofield 
V.  Watkins,  22  111.  66 ;  Read  v.  Plattsmouth,  107  U.  S.  568,  2  Sup. 
Ct.  208,  27  L.  Ed.  414;  U.  S.  v.  Realty  Co.,  163  U.  S.  427,  16  Sup. 
Ct.  1120,  41  L.  Ed.  215. 

The  immediate  question  to  be  here  decided  is  whether  the  Legis- 
lature has  the  power  to  cure  the  defects  involved  in  these  w^arrants, 
eliminate  the  defenses  herein  interposed,  and  require  the  city  to 
discharge  these  particular  obligations.  That  the  contract  was  void 
for  three  reasons  w^as  contended  by  defendant  and  denied  by  plain- 
tiff: (1)  There  was  no  money  in  the  treasury  to  pay  the  w^arrants, 
and  no  provision  made  for  securing  it,  as  required  by  the  law  un- 
der which  defendant  was  incorporated.  This  statute,  however, 
expressly  excepts  cases  otherwise  therein  provided  for.  Here  the 
contract  is  to  be  paid  by  local  assessment.  Therefore  it  was  ar- 
gued that  the  vitiating  provision  does  not  apply.  See  Comstock 
v.  Inc.  Village  of  Nelsonville,  61  Ohio  St.  288,  56  N.  E.  15.  (2) 
Mo  bond  was  given  to  secure  claims  for  work  and  material,  as 
required  by  chapter  321,  p.  535,  Laws  1901.  But  no  such  claims 
aj^pcar  unpaid,  and  an  adequate  bond  was  given  the  city,  which 
i;rotectcd  fully.  (3)  The  warrants  created  an  indebtedness  in  ex- 
cess of  amount  prescribed  for  the  city.  It  was  impliedly  conceded 
that  the  curative  law  is  valid  so  far  as  it  affects  all  the  objections 
of  the  defendant  on  these  grounds.     ♦     ♦     *     Judgment  alTirmed. 


52  LEGISLATIVE    CONTROL 

CITY  OF  NEW  ORLEANS  v.  CLARK. 
(Supreme  Court  of  United  States,  1877.    95  U.  S.  G44,  24  L.  Ed.  521.) 
See  ante,  p.  46.  for  a  report  of  the  case. 


SIMON  V.  NORTHRUP. 
HANSEN  V.  HIRSCH. 
(Supreme  Court  of  Oregon,  1895.    27  Or.  487,  40  Pac.  560,  30  L.  R.  A.  171.) 
See  post,  p.  57,  for  a  report  of  the  case. 


CITY  OF  GUTHRIE  v.  TERRITORY  ex  rel.  LOSEY. 

(Supreme  Court  of  Oklahoma,  1892.    1  Okl.  188,  31  Pac.  190,  21  D.  R.  A.  841.) 

BuRFORD,  J.8  On  the  22d  day  of  April,  1889,  at  the  opening  of 
the  Oklahoma  country  to  settlement  and  occupancy,  a  large  num- 
ber of  people  settled  for  town-site  purposes  upon  the  lands  now 
occupied  by  the  city  of  Guthrie,  The  act  of  congress  approved 
March  2,  1889,  contains  a  provision  that  no  entry  of  lands  for  town- 
site  purposes  shall  embrace  more  than  320  acres  in  any  one  entry. 
To  avoid  this  inhibition,  and  segregate  more  lands  for  the  purpose 
of  trade  and  business,  four  separate  entries  were  made  of  these 
lands,  consisting  of  320  acres  each,  and  were  severally  denominated 
Guthrie,  East  Guthrie,  Capitol  Hill,  and  West  Guthrie.  The  town- 
site  settlers  and  occupants  of  each  of  these  subdivisions  organized 
what  were  called  "provisional  governments,"  under  charters  adopt- 
ed by  the  people  at  public  meetings  held  for  such  purpose,  and 
each  selected  municipal  officers,  made  public  improvements,  graded 
streets,  erected  buildings,  constructed  bridges,  adopted  laws  and 
ordinances,  and  arrested,  punished,  and  imprisoned  violators  of 
such  ordinances.  These  provisional  governments  assumed  and  ex- 
ercised all  the  powers,  functions,  and  authority  of  legally-consti- 
tuted municipal  corporations,  and  continued  to  exercise  the  same 
until  the  month  of  August,  A.  D.  1890,  when  they  were  consoli- 
dated, and  organized  as  a  village  corporation,  under  and  pursuant 
to  the  laws  of  Nebraska,  as  adopted  and  extended  over  said  terri- 
tory by  the  act  of  congress  approved  May  2,  1890,  providing  a  ter- 
ritorial government  for  the  territory  of  Oklahoma;  and  said  vil- 
lage of  (5uthrie  succeeded  to  all  the  improvements,  property,  books, 
and  documents  of  the  several  provisional  governments.  During 
the  existence  of  the  several  provisional  governments  they  each 
contracted  and  created  in  various  ways  pertaining  to  their  munici- 

8  Part  of  the  opinion  is  omitted. 


OBLIGATIONS   IMPOSED   BY   LEGISLATURE  53 

pal  affairs  certain  debts,  which  remained  unpaid  at  the  time  the 
said  provisional  governments  were  converted  into  a  legally-consti- 
tuted municipal   corporation. 

The  village  of  Guthrie  continued  her  corporate  existence  until 
after  the  adjournment  of  the  first  territorial  legislature,  when  she 
organized  as  a  city  of  the  first  class,  under  the  laws  of  Oklahoma, 
and  has  ever  since  remained  such,  with  a  mayor,  common  council, 
and  police  officers,  exercising  all  the  functions  and  powers  of  a 
municipal  corporation,  and  is  composed  of  the  same  people,  and 
embraces  the  same  territory,  as  the  original  provisional  govern- 
ments of  Guthrie,  East  Guthrie,  Capitol  Hill,  and  West  Guthrie, 
and  has  succeeded  to  all  their  property  and  improvements,  and  has 
adopted  and  appropriated  the  same.  During  the  session  of  the 
first  legislature,  and  after  the  village  of  Guthrie  had  been  organized, 
an  act  was  passed,  entitled  "An  act  for  the  purpose  of  providing 
for  the  allowance  and  payment  of  the  indebtedness  heretofore  cre- 
ated by  the  people  and  cities  of  Guthrie,  East  Guthrie,  West  Guth- 
rie, and  Capitol  Hill,  now  consolidated  into  the  city  of  Guthrie." 
Chapter  14,  art.  1,  St.  Okla.  This  act  empowers  the  district  judge 
of  Logan  county  to  appoint  three  disinterested  persons  to  act  as 
referees  to  inquire  into  and  pass  upon  all  claims  and  demands  of 
every  character  heretofore  issued  by  the  four  provisional  govern- 
ments for  all  purposes.     *     *     * 

Acting  under  the  provisions  of  this  statute,  the  district  judge  of 
Logan  county  appointed  the  relator,  with  two  others,  referees  or 
commissioners,  and  they  qualified  and  performed  the  duties  re- 
quired of  them  in  said  act,  and  made  their  report  to  the  district 
court.  Thereupon  the  court  ordered  that  the  relator  be  allowed 
the  sum  of  $425  for  his  services  as  such  referee,  and  ordered  that 
the  council  issue  warrants  of  the  city  of  Guthrie  therefor.  This 
order  was  presented  to  the  council  in  session,  and  a  demand  made 
for  the  warrant,  which  was  refused.  The  relator  applied  to  the 
district  court  of  Logan  county  for  an  alternative  writ  of  mandate, 
commanding  the  city  to  issue  said  warrant,  or  show  cause  why 
the  same  should  not  be  done.  *  *  *  The  court  then  rendered 
judginent  for  the  relator,  and  issued  a  peremptory  writ  of  manda- 
mus commanrling  the  defendant  to  issue  said  warrant.     *     *     * 

The  first  question  to  be  determined  in  this  controversy  is  as  to 
the  legal  status  or  character  of  the  so-called  "provisional  govern- 
ments." It  is  a  well-established  rule  of  law  that  before  there  can 
be  a  de  facto  municipal  corporation  there  must  be  some  authority 
for  a  de  jure  corporation.  A  de  facto  corporation  cannot  exist 
where  there  is  no  law  authorizing  a  de  jure  corporation.  Norton 
v.  Shelby  Co.,  118  U.  S.  426,  6  Sup.  Ct.  1121  ;  Evenson  v.  EHingson, 
67  Wis.  634,  31  N.  W.  342.  "The  proposition  which  lies  at  the 
founrlation  of  the  law  of  corporations  of  this  country  is  that  here 
all  corporations,  public  and  private,  exist,  and  can  only  exist,  by 


54  LEGISLATIVE    CONTROL 

virtue  of  express  legislative  enactment,  creating  or  authorizing  the 
creation  or  existence  of  the  corporate  body.  Legislative  sanction 
is,  with  us,  absolutely  essential  to  lawful  corporate  existence." 
Dill.  Mun.  Corp.  §  2>7 .  Was  there  any  legislative  sanction  to  the 
existence  of  municipal  corporations  prior  to  the  act  of  congress  ap- 
proved May  2,  1890? 

We  are  unable  to  find  any  such  authority.  These  provisional 
governments  grew  out  of  a  necessity  made  by  the  absence  of  legal 
authority.  They  were  aggregations  of  people  associated  together 
for  purpose  of  mutual  benefit  and  protection.  Without  any  statute 
law,  they  became  a  law  unto  themselves,  and  adopted  the  forms  of 
law  and  government  common  among  civilized  people,  and  enforced 
their  authority  by  the  power  of  public  sentiment.  They  had  no 
legal  existence ;  they  were  nonentities ;  they  could  not  bind  them- 
selves by  contracts,  or  bind  any  one  else;  they  were  morally  bound 
to  make  just  recompense  for  that  which  they  received  in  money, 
labor,  or  materials,  but  no  such  obligations  could  be  enforced 
against  them.  The  organic  act  furnished  them  a  sovereign  civil 
government,  and  supplied  the  authority  for  constituting  de  jure 
municipal  corporations.  Then  they  became  and  were  de  facto  cor- 
porations until  such  time  as  they  complied  with  the  laws  relating 
to  incorporating  villages,  and  became  a  de  jure  corporation. 

The  de  jure  corporation  having  succeeded  to  all  the  property, 
public  improvements,  people,  and  territory  of  the  provisional  gov- 
ernments, has  the  legislature  power  to  compel  the  de  jure  govern- 
ment to  pay  the  debts  of  its  illegal  unauthorized  predecessor?  It 
IS  a  fundamental  rule  that  a  legislature  may,  by  a  retroactive  stat- 
ute, cure  or  ratify  any  defect  which  it  might  have,  in  the  first  in- 
stance, authorized,  unless  prohibited  by  some  constitutional  or  or- 
ganic provision ;  or  it  may,  by  a  retroactive  statute,  legalize  any 
proceedings  that  it  might  have  authorized.  Wade,  Retro.  Laws,  §§ 
254,  257,  and  authorities  cited.  It  can  hardly  be  contended  that 
the  legislature  could  not  have  authorized  the  creation  of  the  debts 
of  the  provisional  government  had  there  been  a  legislature  prior 
to  their  organization ;  that  is,  it  is  not  shown  that  the  debts  con- 
tracted, or  any  of  them,  are  of  a  class  that  a  de  jure  municipal 
corporation  might  not  have  been  authorized  to  contract.  Ratifica- 
tion is  merely  the  act  of  conferring  authority  retrospectively ;  and 
this  power  must  necessarily  be  measured  by  the  constitutional  pro- 
visions in  force  at  the  date  of  the  curative  act,  where  it  is  not  de- 
nied by  the  constitution  in  force  at  the  date  of  the  original  defective 
organization  or  act.  Id.  §  266.  Retrospective  laws  may  be  enacted 
for  the  purpose  of  furnishing  remedies  for  the  enforcement  of  pre- 
existent  moral  obligations  which  were  not  legally  enforceable. 
Commissioners  v.  Bunker,  16  Kan.  498;  Weister  v.  Hade,  52  Pa. 
474;   Wade,  Retro.  Laws,  §§  21-23. 


OBLIGATIONS    IMPOSED   BY   LEGISLATURE  55 

Municipal  corporations  are  but  subdivisions  of  the  state  or  terri- 
tory created  for  the  convenience  and  better  government  of  its  af- 
fairs by  local  officers.  Their  rights,  powers,  and  duties  are  the 
creatures  of  legislative  enactment,  and  they  exist  and  act  in  subor- 
dination to  the  sovereign  power  that  creates  them.  The  legislature 
may  determine  what  moneys  they  may  raise  and  expend,  and  what 
taxation  may  be  imposed,  and  it  may  compel  a  municipal  corpora- 
tion to  pay  a  debt  which  has  any  moral  or  meritorious  basis  to  rest 
on.  Mayor,  etc.,  v.  Tenth  Nat.  Bank,  111  N.  Y.  446,  18  N.  E.  618. 
*  *  *  Judge  Dillon,  in  his  work  on  Municipal  Corporations, 
(section  75,)  thus  states  his  conclusions:  "The  cases  on  this  sub- 
ject, when  carefully  examined,  seem  to  the  author  to  go  no  further, 
probably,  than  to  assert  the  doctrine  that  it  is  competent  for  the 
legislature  to  compel  municipal  corporations  to  recognize  and  pay 
debts  or  claims  not  binding  in  strict  law,  and  which,  for  technical 
reasons,  could  not  be  enforced  in  equity,  but  wdiich,  nevertheless, 
are  just  and  equitable  in  their  character,  and  involve  a  moral  obli- 
gation." In  Guilford  v.  Supervisors,  13  N.  Y.  143,  the  court  states 
the  rule  thus :  "The  legislature  is  not  confined  in  its  appropriations 
of  public  moneys  or  of  the  sums  to  be  raised  by  taxation  in  favor 
of  individuals  to  cases  in  which  a  legal  demand  exists  against  the 
states.  It  can  thus  recognize  claims  founded  in  equity  and  justice 
in  the  largest  sense  of  these  terms,  or  in  gratitude  or  charity.  In- 
dependently of  express  constitutional  restrictions,  it  can  make  ap- 
propriations of  money  whenever  the  public  well-being  requires,  or 
will  be  promoted  by  it;  and  it  is  the  judge  of  what  is  for  the  public 
good."  *  *  *  It  was  held  in  Brewster  v.  City  of  Syracuse,  19 
N.  Y.  116,  that  the  legislature  has  power  to  authorize  taxation  for 
the  payment  of  a  claim  not  a  legal  obligation,  and  without  the  con- 
sent of  the  citizens  of  the  municipality.  "The  power  of  the  legis- 
lature to  require  the  payment  of  a  claim  for  which  an  equivalent 
has  been  received,  and  from  the  payment  of  which  the  city  can 
only  escape  on  a  technical  ground,  would  seem  clear."  New  Or- 
leans v.  Clark,  95  U.  S.  644,  24  L.  Ed.  521. 

While  the  contracts  and  agreements  entered  into  by  the  provi- 
sional governments  cannot  be  enforced  as  contracts,  either  against 
the  contracting  parties  or  their  successors,  it  does  not  necessarily 
follow  that  all  the  debts  sought  to  be  collected  under  this  act  are 
without  remedy,  and  might  not  l)e  enforced  in  some  manner  against 
the  present  city  of  Guthrie.  If  they  can,  then  it  presents  a  stronger 
reason  for  legislative  action.  In  Nelson  v.  Mayor,  etc.,  63  N.  Y. 
544,  the  court  said:  "it  has  often  been  adjudged  that  if  a  city 
obtains  money  on  a  void  bond,  or  for  an  illegal  tax,  or  Ijy  mistake, 
and  the  money  goes  into  the  city  treasury,  the  city  can  be  com- 
pelled to  refunrl.  If  it  obtains  property  under  a  void  contract,  and 
actually  uses  the  property,  and  collects  the  value  of  it  from  i)n)i>- 
erty  owners  by  means  of  assessments,  the  plainest  principles  of 


5G  LEGISLATIVE    CONTROL 

justice  require  that  it  should  make  compensation  for  the  value  of 
such  property  to  the  person  from  whom  it  was  obtained.  The  city, 
in  such  case,  however,  should  be  held  liable  only  for  the  actual 
value  of  the  property,  or  wdiat  it  obtained  therefor,  and  would  not 
be  concluded  by  the  contract  price."  This  proposition  is  supported 
by  the  following  cases:  Herman  v.  City  of  Crete,  9  Neb.  356,  2 
N.  W.  722;  Maher  v.  City  of  Chicago,  38  111.  266;  Louisiana  v. 
Wood.  102  U.  S.  294,  26  L.  Ed.  153;  Chapman  v.  County  of  Doug- 
lass, 107  U.  S.  348,  2  Sup.  Ct.  62,  27  L.  Ed.  378;  Clark  v.  Saline 
Co.,  9  Neb.  516,4  N.W.  58. 

There  is  no  provision  in  the  federal  constitution  or  the  organic 
act  of  this  territory  that  contravenes  the  statute  authorizing  the 
village  of  Guthrie  to  pay  these  debts;  and,  aside  from  any  question 
of  implied  liability  for  money  had  and  received,  or  property  ap- 
propriated and  converted  to  the  use  of  the  city,  it  seems  clear  that 
the  legislature  did  not  exceed  its  authority  in  enacting  said  law. 
Courts  cannot  overthrow  legislative  acts  upon  the  ground  that  they 
are  vicious  in  their  policy,  or  evil  in  their  tendencies.  Statutes 
must  stand,  unless  found  repugnant  to  some  express  provision  of 
the  organic  law  or  constitution.  Mount  v.  State,  90  Ind.  29,  46 
Am.  Rep.  192 ;  County  of  Livingston  v.  Darlington,  101  U.  S. 
407,  25  L.  Ed.  1015.  The  legislature  is  to  be  the  judge  of  the  policy 
or  wisdom  of  the  laws  they  enact,  and,  so  long  as  they  keep  within 
the  constitutional  restriction,  the  courts  cannot  interfere,  however 
unjust  they  may  seem  in  their  operations. 

Counsel  for  the  present  city  of  Guthrie  cites  the  case  of  State 
v.  Tappan,  29  Wis.  664,  9  Am.  Rep.  622,  and  insist  that  in  that 
case  the  court  lays  down  a  rule  contrary  to  the  doctrine  enunciated 
in  the  cases  we  have  herein  cited.  A  careful  examination  of  that 
case  fails  to  reveal  any  serious  conflict.  The  decision  is  based  upon 
local  constitutional  restrictions,  and  the  general  conclusion  of  the 
court  is  in  harmony  with  the  adjudicated  cases.  In  summing  up 
his  conclusion  the  learned  judge  states  this  proposition:  "The  leg- 
islature may  authorize  a  town  to  levy  taxes  therein  for  public 
purposes  not  strictly  of  a  municipal  character,  but  from  which 
the  public  have  received,  or  will  receive,  some  direct  advantage, 
or  where  the  tax  is  to  be  expended  in  defraying  the  expenses  of 
the  government,  or  in  promoting  the  peace,  good  order,  and  welfare 
of  society,  or  where  it  is  to  be  expended  to  pay  claims  founded  in 
natural  justice  and  equity,  or  in  gratitude,  for  public  services  or 
expenditures,  or  to  discharge  the  obligations  of  charity  and  hu- 
manity, from  which  no  person  or  corporation  is  exempt."  Under 
this  rule  the  legislature  might  reasonably  say  to  the  village  of 
Guthrie:  "You  have  received  some  advantage  from  the  work  per- 
formed and  improvements  made  by  these  provisional  governments, 
and  these  claims  are  founded  in  natural  justice,  and  we  will  au- 
thorize you  to  tax  your  property  to  pay  them."     The  legislature 


PUBLIC   THOROUGHFARES  57 

has  seen  fit  to  provide  for  the  payment  of  these  claims.  It  had 
the  power  to  enact  such  a  law.  We  find  the  statute  in  conflict  with 
no  superior  rule  or  limitation  which  affects  its  vitality.     *     *     * 

Having-  reached  the  conclusion  that  the  village  of  Guthrie  was 
legally  liable  by  legislative  enactment  for  the  proper  provisional 
debts,  is  the  city  of  Guthrie  also  liable,  and  can  the  defendant  in  the 
case  at  bar  be  required  to  pay  the  relator  for  his  services?  This 
question  has  been  passed  upon  by  several  courts  of  the  highest 
resort,  and  the  same  conclusion  is  reached  in  all.  The  city  of  Guth- 
rie succeeded  to  all  the  rights,  franchises,  and  property  of  the  vil- 
lage of  Guthrie,  and  is  bound  by  all  her  contracts  and  obligations. 
The  legislature  made  the  village  of  Guthrie  liable  for  these  debts 
and  claims.  It  constituted  a  part  of  her  legal  liabilities  at  the  time 
the  change  was  made  from  the  village  to  the  city  organization. 
The  new  was  bound  to  carry  out  and  recognize  all  the  legal  con- 
tracts and  liabilities  of  the  old.  A  municipal  corporation  cannot 
escape  the  payment  of  just  liabilities  by  a  change  of  name,  a  change 
of  organization,  or  a  change  of  boundaries.  The  remedy  may  be  for 
a  time  suspended  or  defeated,  but  the  obligation  rests  the  same,  and 
the  legal  successor  which  takes  the  people,  the  territory,  the  prop- 
erty, and  corporate  benefits  will  be  bound  to  meet  the  liabilities. 
Broughton  v.  Pensacola,  93  U.  S.  266,  23  L.  Ed.  896;  Mobile  v. 
Watson,  116  U.  S.  289,  6  Sup.  Ct.  398,  29  L.  Ed.  620;  Girard  v. 
Philadelphia,  7  Wall  1,  19  L.  Ed.  53;  Mount  Pleasant  v.  Beckwith, 
100  U.  S.  514,  25  L.  Ed.  699;  O'Connor  v.  Memphis,  6  Lea  (Tenn.) 
730.     *     *     ♦    Affirmed. 


V.  Public  Thoroughfares  • 


SIMON  v.  NORTHRUP. 

HANSEN  V.  HIRSCH. 

(Supreme  Conrt  of  Oregon,  1895.    27  Or.  487,  40  Pac.  .560,  ."iO  L.  R.  A.  171.) 

Actions  by  Joseph  Simon  against  H.  H.  Northrup  and  others  and 
John  R.  Hansen  against  Sol.  Hirsch  and  others.  From  a  judg- 
ment for  defendants  in  each  case,  plaintiffs  appeal.  Modified  and 
affirmed. 

Bean,  C.  J.'"  These  two  cases,  which  for  convenience  were  heard 
together  in  this  court,  involve  the  constitutionality  of  an  act  of  the 
legislature  of  1895  providing  for  the  acquisition  by  the  city  of  Port- 

•  For  discussion  of  principles,  see  Cooley,  Mun.  Corp.  §  30. 
»•  I'urt  of  the  opinion  is  omitted. 


58  LEGISLATIVE    CONTROL 

land  of  the  Morrison  street  bridge,  Stark  street  ferry,  and  the  upper 
deck  of  the  steel  bridge,  and  requiring  the  supervision,  management, 
and  control  of  said  bridges  and  ferry,  when  so  acquired,  and  of  all 
the  free  bridges  and  ferries  of  the  city  acquired  under  the  acts  of 
1891  and  1893,  to  be  turned  over  to  the  Multnomah  county  court,  to  be 
thereafter  supervised,  managed,  and  controlled  by  said  court.     *     *     * 

In  the  first  place,  the  entire  act  is  challenged  upon  the  ground  that 
it  is  incompetent  for  the  legislature  to  compel  the  city  of  Portland  to 
incur  a  debt  for  the  construction  of  public  bridges  within  its  bound- 
aries, and  much  was  said  at  the  argument  about  the  inexpediency  and 
injustice  of  such  legislation,  and  the  effect  previous  legislation  of 
this  character  has  already  had  upon  the  financial  affairs  of  the  city. 
But  the  question  is  one  of  power  alone,  and,  however  unjust,  inex- 
pedient, or  even  oppressive  such  legislation  may  be,  the  courts  are 
powerless  to  declare  it  invalid  if  it  is  within  the  legitimate  exercise 
of  legislative  powers.  A  municipal  corporation  is  but  the  creature 
of  the  legislature,  and  in  its  governmental  or  public  capacity  is  one 
of  the  instruments  or  agents  of  the  state  for  governmental  purposes, 
possessing  certain  prescribed  political  and  municipal  powers,  to  be 
exercised  by  it  on  behalf  of  the  general  public  rather  than  for  itself ; 
and  over  it,  as  such  agent,  the  authority  of  the  legislature  is  supreme, 
and  without  limitation  or  restriction  other  than  such  as  may  be  found 
in  the  constitution. 

There  is  a  line  of  authorities  which  hold,  and  perhaps  properly, 
that  a  municipal  corporation  cannot  be  burdened  with  a  debt  without 
its  consent  for  a  matter  of  local,  as  distinguished  from  state,  pur- 
poses. Park  Com'rs  v.  Detroit  Common  Council,  28  Mich.  228,  15 
Am.  Rep.  202;  People  v.  Mayor,  etc.,  of  Chicago,  51  111.  17,  2  Am. 
Rep.  278 ;  People  v.  Batchellor,  53  N.  Y,  128,  13  Am.  Rep.  480.  But 
it  seems  to  be  substantially  agreed  that  when  the  debt  or  liability  is  to 
be  incurred  in  the  discharge  of  some  duty  which  is  imposed  upon  the 
municipality  exclusively  for  public  purposes,  and  in  the  performance 
of  which  the  general  public,  as  distinguished  from  the  inhabitants 
of  the  particular  municipality,  have  an  interest,  it  is  within  the  power 
of  the  legislature  to  compel  it  to  perform  such  duty  and  incur  a  debt 
therefor.  That  the  making  and  establishment  of  public  highways  and 
bridges,  and  the  assessment  and  collection  of  taxes,  are  within  the 
legitimate  legislative  powers,  and  are  among  the  ordinary  subjects  of 
legislation,  cannot  be  questioned.  Nor  do  we  think  it  can  be  success- 
fully denied  that  the  bridges  and  ferries  referred  to  in  the  act  under 
consideration  will,  when  acquired,  belong  to  the  city  of  Portland  in 
its  public  or  governmental  capacity,  and  that  in  the  acquisition  of 
them  it  is  but  discharging  a  public  or  state  duty  which  it  is  entirely 
proper  for  the  legislature  to  impose  upon  it;  and  therefore,  if  there 
is  no  limitation  in  the  constitution,  it  is  no  objection  to  the  validity 
of  an  act  for  that  purpose  that  a  debt  or  liability  against  the  corpo- 
ration is  to  be  created  without  its  consent.    Cooley,  Tax'n,  682 ;   Dill. 


PUBLIC   THOROUGHFARES  59 

Mun.  Corp:  §  74;  Winters  v.  George,  21  Or.  251,  27  Pac.  1041 ;  State 
V.  George,  22  Or.  142,  29  Pac.  356,  16  L.  R.  A.  737,  29  Am.  St.  Rep. 
586;  Citv  of  Philadelphia  v.  Field,  58  Pa.  320;  Bank  v.  Katz,  57  Md. 
145 ;    Davis  v.  Railroad  Co.,  47  N.  Y.  400. 

That  the  construction  of  bridges  and  highways  in  a  city,  and  the 
incurring  of  a  debt  therefor,  should  ordinarily  be  left  to  the  judgment 
and  discretion  of  the  proper  municipal  authorities  is  manifestly  just 
and  in  harmony  with  the  right  of  local  self-government  and  the  theory 
of  our  political  institutions,  but  the  policy  of  such  legislation  is  not 
for  the  courts.  When  the  power  is  conceded,  the  courts  cannot  in- 
quire into  the  expediency  or  manner  of  its  exercise,  or  the  motives 
or  reasons  prompting  the  particular  act.  We  conclude,  therefore,  that 
the  act  in  question  is  not  invalid  because  it  compels  the  city  of  Port- 
land to  incur  a  debt,  without  its  consent,  for  the  acquisition  of  public 
bridges  and  ferries.     *     *     * 

It  is  also  contended  that  the  legislature  cannot  take  from  the  city 
of  Portland  the  supervision,  management,  and  control  of  the  public 
bridges  and  ferries  belonging  to  it,  and  transfer  them  to  the  county 
of  Multnomah.  In  the  first  place,  these  bridges  and  ferries  are  not 
now,  and  never  have  been,  under  the  supervision  of  the  city  of  Port- 
land, but  are  managed  and  controlled  by  a  committee  or  commission 
appointed  for  that  purpose  by  the  legislature,  and  this  act  only  pur- 
ports to  transfer  their  management  and  control  from  such  committee 
to  another  state  or  governmental  agent.  But,  if  it  were  otherwise, 
the  law  is  now  too  well  settled  to  be  questioned  that  the  public  high- 
ways of  a  city  are  not  the  private  property  of  the  municipality,  but 
are  for  the  use  of  the  general  public,  and  that,  as  the  legislature  is 
the  representative  of  the  public  at  large,  it  has,  in  the  absence  of  any 
constitutional  restriction,  paramount  authority  over  such  ways,  and 
may  grant  the  use  or  supervision  and  control  thereof  to  some  other 
governmental  agency  so  long  as  they  are  not  diverted  to  some  use 
substantially  dift'erent  from  that  for  which  they  were  originally  in- 
tended. 2  Dill.  Mun.  Corp.  656,  and  authorities  there  cited  ;  Cooley, 
Const.  Lim.  (5th  Ed.)  335,  and  note.  In  accordance  with  this  prin- 
ciple, it  was  held  in  Railroad  Co.  v.  Portland,  14  Or.  188,  12  Pac.  265, 
58  Am.  Rep.  299,  that  an  act  of  the  legislature  granting  the  use  of 
the  public  levee  of  the  city  of  Portland  to  a  railway  company  for 
railway  pur];oses  was  a  valid  exercise  of  legislative  powers.  So,  also, 
it  was  held  in  People  v.  Walsh,  96  111.  232,  36  Am.  Rep.  135,  that  it 
was  competent  for  the  legislature  to  transfer  the  control  of  the  streets 
of  a  city  to  park  commissioners,  to  be  by  them  controlled  for  boule- 
vard and  driveway  purposes. 

A  city  occupies,  as  it  were,  a  dual  relation  to  the  state, — the  one 
governmental  or  political,  and  the  other  prnprictary  or  j)rivate.  In 
its  governmental  or  jwlitical  capacity  it  is  nothing  more  than  a  mere 
governmental  agent,  subject  to  the  absolute  control  of  the  legislature, 
except  as  restricted  by  the  constitution,  and  such  property  and  ease- 


60  LEGISLATIVE    CONTROL 

ments  as  it  may  have  in  public  streets  and  ways  are  held  by  it  in  such 
capacity,  and  at  the  will  of  the  legislature.  But,  on  the  other  hand, 
such  property  as  it  may  hold  or  acquire  in  its  proprietary  or  private 
capacity  is  as  much  protected  by  the  constitution  as  the  property 
of  the  private  citizen,  and  of  which  it  cannot  be  deprived  except  for 
public  purposes,  and  only  then  upon  just  compensation.  To  the  latter 
effect  arc  the  authorities  cited  and  relied  upon  by  the  defendant,  and 
they  are  therefore  not  in  point  in  this  discussion,     *     *     * 


ALTERATION    AND    DISSOLUTION  61 


ALTERATION  AND  DISSOLUTION 

I.  Territorial  Increase  or  Decrease  ^ 

1.  In  Ge:nerai< 


CITY  OF  DENVER  v.  COULEHAN. 

(Supreme  Court  of  Colorado,  1894.    20  Colo.  471,  39  Pac.  425,  27  L.  R.  A.  751.) 

Action  by  Jeremiah  Coulehan,  suing  for  himself  and  others,  against 
the  city  of  Denver  and  others,  to  enjoin  the  assessment,  levy,  and 
collection  of  taxes  upon  certain  property  in  Jefferson  county  by  or 
for  the  use  of  the  city  of  Denver.  Trial,  and  judgment  in  favor  of 
plaintiff,  granting  the  perpetual  injunction  as  prayed  for.  Defend- 
ants appeal. - 

Elliott,  J.  The  city  of  Denver  was  organized  and  existing  un- 
der and  by  virtue  of  a  special  charter  long  before  and  at  the  time  of 
the  adoption  of  our  state  constitution.  The  constitution  did  not  abro- 
gate such  charters,  nor  does  it  exempt  them  from  legislative  amend- 
ments. Const,  art.  14,  §  14;  Id.  art.  15,  §  2;  Brov^n  v.  City  of  Den- 
ver, 7  Colo.  305,  3  Pac.  455;  Carpenter  v.  People,  8  Colo.  116,  5  Pac. 
828.  On  April  3,  1893,  the  general  assembly  of  Colorado  passed  "An 
act  to  revise  and  amend  the  charter  of  the  city  of  Denver."  See  Sess. 
Laws  1893,  p.  131.  Prior  to  the  passage  of  that  act,  the  territorial  lim- 
its of  the  city  were  wholly  within  the  county  of  Arapahoe.  Jefferson 
county  bounds  Arapahoe  on  the  west,  but  between  Jefferson  and  the 
western  limits  of  the  city  of  Denver  there  were  at  the  time  of  the 
passage  of  the  act  above  mentioned  several  municipal  corporations, 
viz.  the  town  of  North  Denver,  the  town  of  Highlands,  the  town 
of  Colfax,  and  the  town  of  Barnum.  The  territorial  boundaries  of 
these  municipalities  for  the  most  part  extended  to  the  Jefferson  county 
line,  and  so  separated  the  city  of  Denver  from  that  county.  In  fact, 
at  the  time  of  the  passage  of  the  act  to  revise  and  amend  the  Denver 
charter,  no  part  of  the  territorial  limits  of  the  city  of  Denver  was 
contiguous  to  any  part  of  Jefferson  county.  Nevertheless,  by  the  terms 
of  said  act,  it  was  attempted  to  enlarge  or  extend  the  limits  of  the 
city  of  Denver  by  adding  thereto  a  strip  of  land,  5Y^  miles  long  by 
IVii  miles  wide,  lying  along  the  eastern  border  and  wholly  within  the 
county  of  Jefferson. 

If  the  act  adding  the  Jefferson  county  strip  to  the  city  of  Denver 
be  upheld  as  valid,  there  might,  perhaps,  be  no  escape  from  the  taxa- 

1  For  <lisfiissir)n   of  prirKlpl<'S,   sfo  Cooley,   Mini.   Corp.   §  32. 

2  Tlic  stntcmciit  of  fuels  i.s  rcwiitteu. 


G2  ALTERATION   AND    DISSOLUTION 

tion  complained  of  in  the  present  action.  The  decisions  exempting 
certain  property  within  the  territorial  Hmits  of  a  town  or  city  from 
municipal  taxation,  on  the  ground  that  the  property  is  so  situated 
that  it  cannot  receive  its  due  proportion  of  municipal  benefits,  are 
strongly  combated,  on  the  ground  that  the  doctrine  they  assert  is 
illogical  as  well  as  impracticable,  in  that  it  amounts  to  a  substitution 
of  judicial  opinion  for  legislative  judgment  in  matters  peculiarly  within 
the  province  of  the  law  making  power.  See,  upon  this  subject,  Cooley, 
Const.  Lim.  (6th  Ed.)  p.  616,  note  3,  and  cases  there  cited;  also,  2 
Dill.  Mun.  Corp.  (4th  Ed.)  §§  794,  795,  and  notes.  But  it  is  unnec- 
essary to  decide  this  point. 

In  determining  the  present  controversy,  we  shall  endeavor  to  reach 
a  proper  solution  of  the  following  question:  Has  the  legislature  the 
power  to  extend  or  enlarge  the  territorial  limits  of  a  specially  char- 
tered town  or  city  by  adding  thereto  noncontiguous  lands, — that  is, 
lands  entirely  separated  from  such  town  or  city  by  intervening  ter- 
ritory? It  is  customary  to  speak  of  the  power  of  the  legislature  over 
municipal  corporations  as  "plenary."  But  this,  like  most  attempts  at 
epigrammatic  statements  of  the  law,  must  be  taken  cum  grano  salis. 
Certain  it  is  that  constitutional  limitations  must  always  be  observed 
in  respect  to  such  legislation.  Besides,  insurmountable  obstacles  may 
arise  out  of  the  nature  and  subject-matter  of  the  legislation  to  render 
the  same  ineffectual.  In  general,  the  boundaries  of  a  specially  char- 
tered town  or  city  may,  by  act  of  the  legislature,  be  extended  and  en- 
larged so  as  to  include  additional  lands,  the  property  thus  added  be- 
coming subject  to  municipal  taxation,  and  entitled  to  municipal  ben- 
efits. 

It  is  urged  that  power  thus  vested  in  the  legislature  is  subject  to 
abuse  or  improvident  use.  This  may  be  true,  and  yet  it  does  not 
necessarily  follow  that  the  courts  can  restrain  the  enforcement  of  a 
legislative  act  merely  because  the  legislature  acted  improvidently  in 
passing  it.  Before  the  courts  will  restrain  the  enforcement  of  a  leg- 
islative act,  it  must  appear  beyond  reasonable  doubt  that  the  legis- 
lature in  passing  the  act  exceeded  its  power,  or  attempted  to  exer- 
cise a  power  it  did  not  possess.  Wadsworth  v.  Railway  Co.,  18  Colo. 
612,  33  Pac.  515,  23  L.  R.  A.  812,  36  Am.  St.  Rep.  309.  The  im- 
provident use  of  power  by  the  legislative  department  of  the  govern- 
ment does  not  justify  usurpation  by  the  judicial  department.  The 
remedy  for  the  improvident  use  of  official  power  is  by  appeal  to  the 
people,  whose  will,  when  legally  expressed  under  the  constitution,  is 
sovereign  over  all  departments.  It  is  true  that  all  remedies  for  mal- 
administration in  civil  government  may  fail,  because  all  governmental 
agencies  must  be  intrusted  to  minds  subject  to  human  infirmities.  In 
such  case  we  can  only  suffer  and  wait  while  we  strive  for  improve- 
ment.   Martin  v.  Dix,  52  Miss.  53 ;  Turner  v.  Althaus,  6  Neb.  54. 

Is  there,  then,  in  the  present  case  no  check  that  can  curb  the  vault- 
ing ambition  of  a  great  city  in  its  efforts   to  enlarge  its  corporate 


TEERITORIAL   INCREASE    OR   DECREASE  63 

boundaries  and  increase  its  corporate  revenues?  Has  the  legislature 
such  transcendent  power  in  respect  to  territorial  additions  to  specially 
chartered  towns  and  cities  that  the  courts  can  give  no  relief?  Is 
there  nothing  left  but  an  appeal  to  the  people  as  the  dernier  resort? 
The  answer  to  these  questions  must  depend  upon  the  nature  and 
scope,  as  well  as  the  subject-matter,  of  the  legislative  act  in  question. 
As  we  have  seen,  the  general  rule  is  that  the  legislature  has  the  power 
to  extend  the  boundaries,  and  thus  enlarge  the  territorial  limits,  of  a 
town  or  city  existing  under  special  charter.  But  may  the  legislative 
arm  be  extended  as  a  great  pothook  into  any  and  all  the  counties  of 
the  state,  there  to  encircle,  as  in  this  case,  many  square  miles  of  the 
territory  of  such  outside  counties,  and  make  the  same  part  and  parcel 
of  the  city  of  Denver?  May  the  legislature  do  this,  without  annex- 
ing any  intervening  territory,  and  without  providing  even  a  street 
or  an  alley  to  connect  such  outlying  municipal  additions  to  the  city 
proper?  It  may  be  said  that  this  is  an  extreme  illustration;  but,  as 
was  once  said  by  Chief  Justice  Shaw,  "It  is  necessary  to  put  extreme 
cases  to  test  a  principle." 

What  is  a  city?  With  much  research  into  the  historical  derivation 
of  the  word,  Webster,  pre-eminently  the  lexicographer  of  the  law 
as  well  as  of  the  common  people,  defines  a  "city"  in  substance  as  fol- 
lows: (1)  A  large  town;  (2)  a  corporate  town;  in  the  United  States, 
a  town  or  collective  body  of  inhabitants,  incorporated  and  governed 
by  a  mayor  and  aldermen ;  (3)  the  collective  body  of  citizens  or  in- 
liabitants  of  a  city.  Since  a  city  is  a  large  town,  we  look  for  the  mean- 
ing of  the  word  "town."  Again,  we  find  from  Webster  that  the 
primitive  idea  of  a  town  was  an  inclosure.  The  popular  use  and 
meaning  of  the  word  is  a  large,  closely  populated  place,  whether  in- 
corporated or  not,  as  distinguished  from  the  country  or  from  rural 
communities.  These  definitions  are  sustained  and  amplified  by  the 
Century  Dictionary.  The  legal  as  well  as  the  popular  idea  of  a  town 
or  city  in  this  country,  both  by  name  and  use,  is  that  of  oneness,  com- 
munity, locality,  vicinity;  a  collective  body,  not  several  bodies;  col- 
lective body  of  inhabitants, — that  is,  a  body  of  people  collected  or 
gathered  together  in  one  mass,  not  separated  into  distinct  masses, 
and  having  a  community  of  interest  because  residents  of  the  same 
place,  not  different  places;  hence,  locality,  not  localities;  vicinity; 
vicinage;  near,  adjacent,  not  remote.  So,  as  to  territorial  extent, 
the  idea  of  a  city  is  one  of  unity,  not  of  plurality;  of  compactness 
or  contiguity,  not  separation  or  segregation. 

Legislative  acts  in  the  matter  of  extending  the  boundaries  of  mu- 
nicipal corporations  arc  to  be  interpreted  and  applied  according  to 
the  essential  nature  as  well  as  the  subject-matter  of  such  legislation. 
In  the  nature  of  things,  there  must  be  some  limit  to  legislative  jiowcr. 
For  example,  the  legislature  cannot  extend  the  municipal  boundaries 
of  a  city  into  another  slate.  Legislative  acts  upon  such  a  subject 
would  have  no  extraterritorial  force.     There  arc  some  tilings  that  in 


64  ALTERATION    AND    DISSOLUTION 

their  very  nature  cannot  be  accomplished  by  any  human  power :  A 
thing  cannot  be  made  to  exist  as  a  whole  and  in  broken  disjointed 
fragments  at  one  and  the  same  time.  A  thing  essentially  single  in  its 
nature  cannot  have  a  plural  existence.  Every  municipality  must  have 
its  territorial  corpus,  in  which  to  exercise  its  corporate  functions  and 
powers.  Such  corpus  may  be  enlarged  or  diminished  by  the  action 
of  the  legislature.  So  the  human  body  may  grow  or  diminish  by  the 
action  or  nonaction  of  its  vital  forces ;  but  neither  the  human  body 
nor  the  municipal  corpus  loses  its  identity,  its  individuality,  or  its 
unity  by  such  growth  or  enlargement.  It  is  a  misnomer — a  solecism 
— to  speak  of  a  growth  of  the  human  body  not  connected  with  the 
body  itself.  Such  a  growth  is,  in  fact,  not  of  the  body.  So,  territory 
not  in  fact  connected  with  or  adjacent  to  a  city  cannot  be  regarded 
as  a  part  of  the  municipal  corpus,  or  as  an  addition  thereto,  in  any 
true  sense  of  the  term. 

Analogous  questions  have  been  considered  by  the  Wisconsin  su- 
preme court.  Railway  Co.  v.  Town  of  Oconto,  50  Wis.  189,  6  N.  W. 
607,  36  Am.  Rep.  840;  Smith  v.  Sherry,  50  Wis.  210,  6  N.  W.  561. 
In  the  latter  case  Mr.  Justice  Taylor  said:  "We  do  not  by  this 
decision  intend  to  set  bounds  to  the  discretion  of  the  legislature  in 
fixing  the  boundaries  of  a  village,  so  long  as  the  territory  of  which 
it  is  composed  is  adjacent  or  contiguous,  nor  to  intimate  that  the 
legislature  may  not  incorporate  as  one  village  two  or  more  assemblages 
of  inhabitants  living  at  some  distance  from  each  other,  with  spaces 
of  uninhabited  lands  intervening,  when  such  intervening  spaces  are 
also  included  in  such  village,  but  that  a  village  cannot  be  incorporated 
containing  two  or  more  tracts  of  territory  not  contiguous  or  adjoin- 
ing, and  separated  by  some  other  civil  subdivision  of  the  state,  and 
especially  that  an  uninhabited  and  separate  tract  of  country  cannot  be 
annexed  to  or  made  a  part  of  an  incorporated  village.  If,  by  an  act 
of  the  legislature,  a  tract  of  country  not  inhabited,  and  not  adjoin- 
ing a  village,  can  be  made  a  part  of  such  village,  then  it  would  seem 
to  follow  that,  by  another  act  of  the  legislature,  the  inhabited  part 
of  such  village  might  be  separated  therefrom;  and  we  should  have 
the  anomalous  thing  of  a  village  without  inhabitants,  and  composed 
simply  of  a  tract  of  territory,  which  would  be  an  absurdity." 

From  careful  investigation  and  consideration,  it  is  evident  that  it 
was  never  contemplated  by  the  law  that  the  territorial  limits  of  a  town 
or  city  might  include  distinct,  disjointed  fragments  or  parcels  of  land, 
situate  miles  and  miles  distant  from  each  other,  and  separated  from 
the  city  proper  by  intervening  territory.  It  is  not  to  be  understood 
from  this  that  a  city  may  not  be  formed  from  territory  lying  on 
different  sides  of  a  natural  stream.  Nor  must  anything  in  this  opinion 
be  construed  as  intimating  that  noncontiguous  territory  may  be  added 
to  a  city  by  connecting  the  same  by  a  narrow  street  or  alley.  An- 
nexation sought  to  be  accomplished  by  such  means  might  bear  upon 
its  face  such  earmarks  of  fraud  as  would  vitiate  an  ordinary  trans- 


TERRITORIAL   INCREASE    OR   DECREASE  65 

action,  though  we  do  not  intimate  that  judicial  inquiry  may  extend  to 
the  motives  of  a  co-ordinate  department  of  the  government.  Kountze 
V.  City  of  Omaha,  5  Dill.  443,  Fed.  Cas.  No.  7,928 ;  Kelly  v.  City  of 
Pittsburgh,  85  Pa.  170,  27  Am.  Rep.  633 ;  People  v.  Martin,  19  Colo. 
565,  36  Pac.  543,  24  L.  R.  A.  201 ;  Hudson  v.  City  of  Denver,  12 
Colo.  157,  20  Pac.  329.  In  City  of  Galesburg  v.  Havvkinson,  75  111. 
158,  it  is  said  that  the  boundaries  of  municipal  corporations  can  be 
altered  and  changed  by  the  legislature  in  its  discretion,  and  that  the 
authorities  are  all  that  way.  The  opinion,  however,  significantly  adds : 
"Courts  may  determine  what  are  the  corporate  limits  already  estab- 
lished; they  may  determine  whether  what  is  claimed  by  the  munici- 
pal authority  to  be  the  corporate  limits  is  so  or  not;  and  they  may 
inquire  whether  the  legislative  authority  has  exceeded  the  powers 
with  which  it  is  invested.  But  all  this  implies  an  existing  law,  appli- 
cable to  the  particular  subject,  and  the  inquiry  is,  what  is  the  law, 
and  has  it  been  violated  or  complied  with?" 

Counsel  for  appellant  relies  upon  the  following  from  an  eminent 
text  writer:  "Not  only  may  the  legislature  originally  fix  the  limits  of 
the  corporation,  but  it  may,  unless  specially  restrained  in  the  consti- 
tution, subsequently  annex,  or  authorize  the  annexation  of  contigu- 
ous or  other  territory;  and  this  without  the  consent,  and  even  against 
the  remonstrance,  of  the  majority  of  the  persons  residing  in  the  cor- 
poration or  on  the  annexed  territory."  1  Dill.  Mun.  Corp.  (4th  Ed.) 
§  185.  The  words  "or  other,"  in  the  foregoing  extract,  are  not  itali- 
cised in  the  published  volume.  The  leading  case  cited  in  support 
of  the  text  is  Blanchard  v.  Bissell,  11  Ohio  St.  96.  That  case  was 
one  wherein  it  was  sought  to  annex  an  unincorporated  village  to  the 
city  of  Toledo.  It  was  objected  that  the  territory  sought  to  be  an- 
nexed was  not  in  fact  contiguous  to  the  city  of  Toledo.  The  opinion 
shows  "that  the  center  of  the  Maumce  river  formed  the  southeastern 
boundary  of  the  city  of  Toledo ;  that  the  annexed  territory  [con- 
sisting of  an  unincorporated  village  called  "Yondota"]  is  situated  on 
the  southeastern  side  of  the  river,  in  a  bend  running  up  near  to  the 
heart  of  the  city,  and  that  all  of  it  is  nearer  to  the  center  of  the  busi- 
ness and  valuable  property  than  many  other  portions  of  the  original 
city  territory ;  that  the  river  is  navigable,  and,  where  it  formed  said 
original  boundary,  is  of  unequal  width;  but,  for  half  a  mile  or  more, 
docs  not  exceed  one-fourth  of  a  mile  in  width,  and  has  been  perma- 
nently bridged  for  railroad  purposes,  and  may  be  bridged  for  other 
purposes ;  that  Yondota  depended  mainly  upon  the  infiucnce  of  busi- 
ness and  improvements  in  Toledo  for  its  growth  and  importance. 
The  transcript  of  the  annexation  proceedings,  and  the  accompanying 
map,  show  that  the  anncxati(jn  consists  in  an  extension  of  the  orig- 
inal boundaries,  so  as  to  include  the  whole  of  the  river  and  a  consid- 
erable tract  of  land  on  its  southeast  side.  Tlnrc  is  no  territory  in- 
tervening between  that  which  was  annexed  and  the  original  city  lim- 
CooLEY  Cases  Mun.C. — 5 


66  ALTERATION    AND    DISSOLUTION 

its.  All  the  parts  of  the  annexed  territory  are  in  immediate  contact 
with  each  other;  and  the  whole  is  in  direct  contact  for  several  miles 
with  the  original  boundary.  Contiguity  cannot  import  more  than 
immediate  contact;  and  we  think  the  objection  founded  on  a  want 
of  contiguity  is  not  well  taken."  It  is  clear  that  the  Toledo  case  in 
no  way  militates  against  the  views  we  have  expressed,  but  rather 
confirms  them;  none  of  the  other  cases  cited  by  counsel  sustain  the 
view  that  noncontiguous  territory  may  be  added  to  and  made  part 
of  a  town  or  city;  hence  we  conclude  that  the  text  of  Judge  Dillon 
above  quoted  cannot  be  accepted  as  correct  to  its  full  extent  and 
import.  The  dearth  of  authority  upon  this  point  leads  to  the  belief 
that  legislatures  have  seldom,  or  never  before,  attempted  to  annex 
to  an  incorporated  town  or  city  territory  so  clearly  noncontiguous 
as  in  the  present  instance. 

It  was  argued  orally  that,  while  the  legislature  may  not  have  the 
power  to  annex  distant  noncontiguous  territory  by  a  direct  act  for 
that  purpose,  yet  in  this  case  the  Jefferson  county  strip  must  be  re- 
garded as  a  part  of  the  city  of  Denver,  for  the  reason  that  it  is  in- 
cluded in  the  boundary  surveys  as  specified  in  the  revised  and  amended 
charter,  and  that,  unless  so  included,  the  city  has  no  boundary  lines, 
particularly  on  the  west.  This  argument  is  without  force.  Equity 
looks  to  the  substance  rather  than  the  form;  it  regards  the  result  of 
an  act  rather  than  the  mode  of  accomplishing  it.  There  may  be  a 
wrong  way  of  doing  a  right  thing,  but  there  is  no  right  way  of  doing 
a  wrong  thing.  An  act  essentially  wrong  does  not  become  right  by 
the  manner  of  doing  it.  If  the  mode  of  making  municipal  additions 
as  argued  by  counsel  were  to  be  upheld,  any  noncontiguous  territory, 
however  remote,  might  be  surveyed  in,  and  thus  become  attached  to 
and  made  a  part  of,  the  city.  The  conclusion  at  which  we  have  ar- 
rived need  not  disturb  the  boundary  lines  of  the  city  as  established 
by  the  amended  charter,  except  on  the  west.  As  to  these,  the  city 
limits  must  end  where  the  insurmountable  obstacles — that  is,  the  ter- 
ritorial limits  of  the  intervening  municipalities — begin. 

For  the  reasons  stated,  we  are  clearly  of  the  opinion  that  the  legis- 
lature did  not  have  the  power  to  extend  or  enlarge  the  territorial 
limits  of  the  city  of  Denver  by  adding  thereto  the  noncontiguous  strip 
of  lands  situate  in  Jefferson  county,  and  that  the  district  court  did 
not  err  in  restraining  the  collection  of  taxes  by  or  for  the  use  of  the 
city  of  Denver  upon  such  Jefferson  county  property.  This  conclusion 
being  decisive  of  the  present  controversy,  other  questions  sought  to 
be  raised  upon  this  appeal  need  not  be  discussed.  The  judgment  of 
the  district  court  is  accordingly  affinned.     Affirmed.* 

3  The  opinion  on  rehearing  is  omitted. 


tekritorial  incbease  ok  decrease  .67 

2.  What  Territory  May  Be;  Annexi;d 


VESTAL  V.  CITY  OF  LITTLE  ROCK. 

(Supreme  Court  of  Arkausas,  1S91.    54  Ark.  321,  15  S.  W.  891,  11  L.  R.  A.  778.) 

Hemingway,  J.  This  appeal  arises  in  a  proceeding  on  the  part 
of  the  city  of  Little  Rock  to  annex  to  itself  certain  outlying  and  con- 
tiguous territory.  The  statute  prescribes  conditions,  upon  a  com- 
pliance with  which  a  municipal  corporation  may  present  to  the  county 
court  its  petition  to  annex  to  it  contiguous  territory  lying  in  the  same 
county.  Mansf.  Dig.  §  922.  It  provides  that  when  such  petition  is 
presented  to  the  county  court  it  shall  fix  a  day  for  hearing  thereon,  of 
which  notice  shall  be  given,  and  that  any  person  interested  may  appear 
and  contest  the  granting  of  the  petition.  Id.  §  786.  It  further  pro- 
vides that,  if  the  court  shall  find  that  the  prescribed  conditions  have 
been  observed,  and  shall  deem  it  reasonable  and  proper  to  grant  the 
petition,  it  shall  make  an  order  to  that  effect.  Id.  §  787.  A  reversal 
of  the  order  granting  the  city's  petition  under  this  statute  is  sought  on 
two  grounds :  First,  because  the  court  exceeded  its  authority  in  order- 
ing that  lands  be  annexed  that  were  not  contiguous  to  the  city;  and, 
second,  because  it  ordered  that  lands  be  annexed  which  it  was  unrea- 
sonable and  improper  to  include  within  the  city.  Before  considering 
them  directly,  we  will  state  what  we  conclude  from  the  many  au- 
thorities to  be  the  correct  rule  to  guide  in  determining  an  application 
for  annexation. 

1.  That  city  limits  may  reasonably  and  properly  be  extended  so  as 
to  take  in  contiguous  lands  (1)  when  they  are  platted  and  held  for  sale 
or  use  as  town  lots ;  (2)  whether  platted  or  not,  if  they  are  held  to 
be  brought  on  the  market,  and  sold  as  town  property,  when  tliey  reach 
a  vakic  corresponding  with  the  views  of  the  owner ;  (3)  when  they 
furnish  the  abode  for  a  densely  settled  community,  or  represent  the 
actual  growth  of  the  town  beyond  its  legal  boundary;  (4)  when  they 
are  needed  for  any  proper  town  purpose,  as  for  the  extension  of  its 
streets,  or  sewer,  gas,  or  water  system,  or  to  supply  places  for  the 
abode  or  business  of  its  residents,  or  for  the  extension  of  needed  i)olice 
regulation  ;  and  (5)  when  they  are  valuable  by  reason  of  their  adai)ta- 
bility  for  prospective  town  uses.  But  the  mere  fad  tli.it  iheir  value  is 
enhanced  by  reasfMi  of  their  nearness  to  the  cor])()ration  wouhl  not 
give  ground  for  their  amiexation  if  it  did  not  apjK-ar  that  such  value 
was  enhanced  on  account  of  their  adai)tability  to  town  use. 

2.  We  conclude  further  that  city  limits  should  not  be  so  extended 
as  to  take  in  contiguous  lands  (1)  when  they  are  used  only  for  pur- 
poses of  agriculture  (n  horticulture,  and  are  valuable  on  account  of 
.such  use;  (2)  when  they  arc  vacant,  and  do  not  derive  special  value 
from  their  adaptabihty  for  city  uses.    Peo])le  v.  Bennett,  2*J  Midi.  4.^1, 


G8  ALTERATION   AND    DISSOLUTION 

18  Am.  Rep.  Ill ;  Cheaney  v.  Hooser,  9  B.  Men.  (Ky.)  330;  City  v. 
Southgate,  15  B.  Men.  (Ky.)  491;  Morford  v.  Unger,  8  Iowa,  82; 
New  Orleans  v.  Michoud,  10  La.  Ann.  763 ;  Bradshaw  v.  Omaha,  1 
Neb.  16.  By  contiguous  lands  we  understand  such  as  are  not  separat- 
ed from  the  corporation  by  outside  land;  and  we  think  the  statute 
permits  the  annexation  of  any  such  lands,  and  that  the  court  is  jus- 
tified in  making  an  order  to  annex  them,  whenever  they  are  so  situ- 
ated with  reference  to  the  corporation  that  it  may  reasonably  be  ex- 
pected that  after  annexation  they  will  unite  with  the  annexing  corpo- 
ration in  making  up  a  homogeneous  city,  which  will  afford  to  its  sev- 
eral parts  the  ordinary  benefits  of  local  government.  But,  however 
near  they  may  be  to  the  petitioning  corporation,  if  they  are  so  circum- 
stanced with  reference  to  it  that  it  could  not  reasonably  be  expected 
that  the  parts  would  amalgamate  and  organize  a  municipal  unit  which 
would  afford  to  each  the  ordinary  benefits  of  local  government,  it 
would  not  be  reasonable  and  proper  to  order  their  annexation.  When 
actual  unity  is  impracticable,  legal  unity  should  not  be  attempted,  but 
the  incongruous  communities  should  be  left  to  independent  control. 
In  all  cases,  however,  where  actual  unity  is  practicable,  legal  unity 
should  be  ordered  as  promising  the  greatest  aggregate  of  municipal 
benefits. 

To  sustain  their  first  ground  for  reversal,  appellants  rely  on  the 
fact  that  the  city  is  on  one  side  and  a  part  of  the  lands  included  in 
the  order  is  on  the  other  side  of  the  Arkansas  river ;  but  we  do  not 
think  this  fact  conclusive  that  the  lands  are  not  contiguous  within  the 
meaning  of  the  act.  The  river  is  also  included  in  the  land  annexed, 
and  is  therefore  not  a  break  to  contiguity,  nor  an  inseparable  barrier 
to  complete  amalgamation  of  the  communities  upon  its  opposite  banks. 
That  intervening  rivers  do  not  prevent  such  amalgamation  or  the  con- 
sequent building  up  and  maintaining  of  a  compact  city  is  attested  by 
common  observation;  and  the  supreme  court  of  Ohio,  in  construing 
a  provision  in  the  same  terms  as  that  relied  on,  contained  in  a  statute 
upon  which  our  own  appears  to  have  been  modeled,  held  that  a  city 
might  annex  territory  on  the  opposite  bank  of  a  large  river.  Blan- 
chard  v.  Bissell,  11  Ohio  St.  96.  See,  also,  Ford  v.  Incorporated 
Town  of  North  Des  Moines,  80  Iowa,  626,  45  N.  W.  1031. 

To  sustain  the  ground  that  the  annexation  ordered  was  unreason- 
able and  improper,  reliance  is  had  upon  the  fact  just  considered,  and 
the  further  fact  that  the  only  means  of  communication  between  the 
communities  on  opposite  sides  of  the  river  is  afforded  by  two  toll- 
bridges,  and  a  number  of  small  boats  operated  by  private  persons  for 
hire.  That  such  are  the  means  of  communication  between  the  com- 
munities does  not  prove  that  they  would  continue  to  be  the  only  means 
when  the  two,  now  separate,  are  blended  in  municipal  union.  While 
these  are  facts  to  be  considered  in  determining  whether  annexation 
is  proper  and  reasonable,  they  are  not  necessarily  inconsistent  with 


TERRITORIAL   INCREASE    OR   DECREASE  69 

the  attainment  of  absolute  unity,  or  the  usual  benefits  of  local  gov- 
ernment. To  what  extent  they  would  tend  to  prevent  it,  and  how  far 
this  tendency  would  be  obviated  by  the  action  of  the  united  communi- 
ties, is  a  question  of  great  uncertainty.  It  has  been  resolved  against 
the  appellants  by  the  county  court,  to  whose  determination  it  is  pri- 
marily committed,  and  again  by  the  circuit  court  on  appeal.  Indulging 
the  ordinary  presumption  in  favor  of  the  correctness  of  their  finding, 
in  a  matter  about  which  conclusions  might  well  differ,  we  would  cer- 
tainly not  be  warranted  in  disturbing  their  finding.  On  the  same 
ground  reliance  is  placed  upon  the  fact  that  the  annexation  includes  40 
acres  of  land  belonging  to  William  Metz,  which  is  vacant,  low,  flat, 
and  wet,  covered  with  timber,  and,  as  it  is  claimed,  for  these  reasons 
unsuited  for  town  purposes.  It  has  not  been  platted,  but  platted  lands 
in  the  unincorporated  town  of  Argenta  touch  it  upon  two  sides  to 
its  entire  extent.  It  does  not  appear  how  densely  the  adjoining  lands 
are  settled.  Upon  those  facts  we  cannot  say  that  the  court  was  not 
warranted  in  finding  that  it  was  proper  to  annex  this  land.  It  may 
have  been  needed  for  town  purposes,  and  it  may  have  needed  or- 
ganized local  government  to  reclaim  the  low,  wet  parts,  and  fit  it  for 
town  uses.  Such  places  are  thus  reclaimed  in  the  ordinary  course  of 
town  improvements,  and  become  centers  of  population  and  business 
activity. 

The  last  fact  urged  is  the  inclusion  of  40  acres  of  land  belonging  to 
Joseph  W.  Vestal.  It  lies  across  the  river  from  the  corporation,  and 
is  from  a  half  a  mile  to  three-quarters  of  a  mile  distant  from  the  unin- 
corporated town.  Xo  streets  of  the  corporation  or  village,  or  other 
town  improvements,  extend  to  it,  and  the  line  of  city  settlement  has 
not  reached  it.  It  is  not  laid  off  for  city  uses.  There  is  no  settlement 
on  it,  and  its  proprietor  cultivates  it  in  his  business  as  a  florist  and 
farmer.  He  remonstrated  against  its  annexation  upon  the  hearing 
in  the  county  court,  and  by  successive  appeals  renews  his  remonstrance 
here.  He  insists  that  his  land  is  not  needed,  nor  at  present  adaptable, 
for  city  uses;  that  it  would  not  be  enhanced  in  value  by  annexation, 
but  that  its  annexation  would  subject  it  to  taxation  without  any  benefit 
or  compensation  to  him ;  and  the  facts  sustain  his  contention.  Upon 
a  similar  state  of  case  it  has  been  held  by  some  courts  that  land  could 
not  be  subjected  to  municipal  taxation,  and  never,  so  far  as  our  in- 
formation goes,  that  it  ought  to  be.  In  this  state  all  city  pro[)crty 
must  bear  alike  the  burden  of  ordinary  city  taxation,  (Fletcher  v. 
Oliver,  25  Ark.  289;  Gary  v.  City,  88  111!  154,  30  Am.  Rep.  543; 
Martin  v.  Dix,  52  Miss.  53,  24  Am.  Rep.  661 ;  Washburn  v.  City  of 
Oshkosh,  60  Wis.  453,  19  X.  W.  364;)  and  in  determining  whether 
the  annexation  of  i)articular  lanrls  is  reasonable  and  proper,  regard 
should  be  taken  of  this  fact.  Was  it  right  and  proi)cr  to  include  Ves- 
tal's land,  and  subject  it  to  ordinary  taxation  for  city  purposes?  He 
had  no  need  of  local  government,  and  the  city  had  no  need  of  his 


70  ALTERATION    AND    DISSOLUTION 

land.  It  could  not  afford  him,  even  in  a  moderate  degree,  the  ordinary- 
benefits  of  city  government,  without  an  expense  which  it  could  not 
have  contemplated  without  cause  for  remonstrance  on  the  part  of  its 
residents. 

The  cases  cited  by  the  appellee  arose  upon  resistance  by  taxpayers 
to  acts  of  the  legislature  including  their  lands  within  cities.  The 
courts  said  it  was  in  the  power  of  the  legislature  to  pass  the  acts,  and 
declined  to  inquire,  for  want  of  authority,  whether  it  was  morally 
wrong  or  practically  unjust  to  pass  them.  52  Miss.  53 ;  Giboney  v. 
Cape  Girardeau,  58  Mo.  141 ;  City  v.  Coulter,  58  Cal.  537 ;  Washburn 
v.  City  of  Oshkosh,  60  Wis.  453,  19  N.  W.  364;  Turner  v.  Althaus, 
6  Neb.  54.  Such  is  not  our  attitude  towards  the  question  in  this  case ; 
and  if  this  order,  without  the  conclusiveness  of  legislative  enactment 
or  final  judicial  sanction,  can  be  sustained,  there  is  no  reason  why  a 
corporation  may  not  extend  its  control  and  power  over  all  the  farming 
lands  of  a  county,  if  it  observe  one  caution, — not  to  skip  any  as  it  ad- 
vances. We  recognize  the  weight  that  attaches  to  the  findings  of  the 
court  below,  but  the  facts  are  undisputed,  and  admit  of  but  one  deduc- 
tion, and  that  is  that  Vestal's  farm  and  garden  were  not  needed  for  city 
use,  and  that  their  annexation  would  subject  him  to  the  burdens, 
without  the  compensating  benefits,  of  local  government.  Courts  of 
wisdom  and  learning  have  upon  the  same  facts,  in  the  protection  of 
private  rights,  set  aside  the  solemn  acts  of  a  co-ordinate  branch  of 
the  government.  15  B.  Mon.  491;  8  Iowa,  82;  1  Neb.  16;  and  see 
County  Com'rs  v.  President,  51  Md.  465;  New  Orleans  v.  Michoud, 
10  La.  Ann.  763;  2  Dill.  Mun.  Corp.  §  795,  and  note;  People  v.  Ben- 
nett, 29  Mich.  451,  18  Am.  Rep.  Ill ;  Borough  of  West  Philadelphia, 
5  Watts  &  S.  281 ;   Kelly  v.  Meeks,  87  Mo.  396. 

Without  committing  ourselves  to  the  entire  approval  of  those  cases, 
we  cannot  in  the  exercise  of  ordinary  appellate  jurisdiction  ignore  the 
considerations  of  justice  and  right  that  prompted  them.  Believing 
that  the  facts  admit  of  no  implication  to  sustain  the  judgment  of  the 
circuit  court,  we  cannot  do  it.  The  statute  provides  that  the  county 
court  may  permit  the  petitioner  to  amend  the  petition  so  as  to  exclude 
land  embraced  within  it.  Mansf.  Dig.  §  786;  Foreman  v.  Marianna, 
43  Ark.  324.  The  circuit  court  tries  the  case  de  novo,  and  makes  such 
order  as  the  county  court  should  have  made,  (Dodson  v.  Ft.  Smith, 
33  Ark.  517,)  and  it  may  therefore  permit  a  like  amendment  unless 
restrained  by  other  provisions  of  the  statute,  (sections  790,  916-922, 
IMansf.  Dig.).  We  do  not  think  they  restrain  it.  Without  determin- 
ing their  legal  effect,  it  is  sufficient  to  say  we  think  they  were  intended 
to  provide  a  cumulative  remedy  for  a  review  of  the  action  of  the 
county  court,  and  that  the  directions  they  contain  as  to  the  judgment 
to  be  rendered  by  the  circuit  court  apply  only  when  that  remedy  is 
invoked,  and  has  no  application  to  a  proceeding  by  appeal. 

For  the  error  indicated  the  judgment  will  be  reversed,   and  the 


CONSOLIDATION  71 

cause  remanded  to  the  circuit  court.  The  petitioner  should  be  per- 
mitted to  make  such  amendments  as  it  may  deem  proper  in  order  to 
exclude  from  the  petition  lands  that  should  not  be  annexed,  and  re- 
monstrants should  be  permitted  to  resist  granting  the  petition  as 
amended.  In  order  to  prevent  possible  complications,  we  have  thought 
proper  to  add  that  we  think  the  order  of  annexation  is  wholly  inop- 
erative, at  least  after  the  judgment  of  reversal. 


II.  Consolidation  * 


STATE  ex  rel.  RICHARDS  v.  CITY  OF  CINCINNATI. 

(Supreme  Court  of  Ohio,  1S95.    52  Ohio  St.  419,  40  X.  E.  oOS,  27  L.  R.  A.  737.) 

Original  petition  in  quo  warranto,  in  the  name  of  the  state  against 
the  city  of  Cincinnati,  to  test  the  validity  of  certain  proceedings  for 
the  annexation  of  contiguous  municipal  corporations. 

The  petition  alleges  that  the  defendant,  which  is  the  only  city  of 
the  first  grade  of  the  first  class  in  this  state,  has  instituted,  and  is 
about  to  carry  to  completion,  proceedings  to  extend  its  corporate  lim- 
its by  annexation,  so  as  to  include  the  contiguous  villages  of  Riverside, 
Westwood,  Clifton,  Avondale,  and  Linwood,  and  claims  the  right  to 
do  so,  under  and  by  virtue  of  an  act  of  the  general  assembly  passed 
April  13,  1893,  entitled  "An  act  to  authorize  cities  of  the  first  grade 
of  the  first  class  to  annex  contiguous  municipal  corporations  of  other 
grades  or  classes  lying  within  any  county  containing  such  cities  of 
the  first  grade  of  the  first  class,"  and  an  act  amendatory  thereof, 
passed  April  24,  1893. 

Williams,  j,5  *  *  *  Another  objection  made  to  this  statute 
is  that  the  object  sought  to  be  accomplished  by  it,  in  the  mode  pro- 
vided, is  beyond  the  range  of  legislative  authority,  because  it  authoriz- 
es annexation,  and  consequently  taxation,  without  the  consent  of  those 
who  are  affected  by  it.  The  proposition  of  counsel,  as  stated  in  the 
brief,  is:  "If  annexation  of  one  municipal  corporation  to  another  be 
so  authorized  as  to  vest  in  the  agencies  empowered  to  effect  the  union 
final  authority  to  rcfjuire  substantial  taxes  for  objects  accomplished, 
anrl  purely  local  to  the  annexing  corporation,  to  be  imposed  upon  the 
taxable  inhabitants  of  the  niunici])ality  proposed  to  be  annexed,  then 
the  exercise  of  power  to  annex  must  be  founded  in  mutual  consent." 
That  the  enlargement  of  the  territorial  boundaries  of  municipal  cor- 
porations by  annexation,  and  the  consequent  extension  of  their  cor- 

*  For  fllsciisslon  of  ininclples,  see  Cooley,  Mini.  rorp.  §  .",1. 

»  The  stateniout  of  facts  la  rcwrltteu  aud  part  of  the  opiulon  Is  omitted. 


72  ALTERATION   AND    DISSOLUTION 

porate  jurisdiction,  including  that  of  levying  taxes,  are  legitimate 
subjects  of  legislation,  must  be  admitted;  and  hence,  the  extent  to 
which  such  legislation  shall  be  enacted,  both  with  respect  to  the  condi- 
tions and  circumstances  under  which  the  annexation  may  be  had,  and 
the  manner  in  which  it  may  be  made,  rests  wholly  in  the  discretion  of 
the  general  assembly,  except  in  so  far  as  limitations  upon  its  power 
are  contained  in  the  constitution.  Accordingly,  legrslation  has  been 
sustained,  which  authorized  the  annexation  of  territory,  without  the 
consent  of  its  inhabitants,  to  a  municipal  corporation  having  a  large 
unprovided-for  indebtedness,  for  the  payment  of  which  the  property 
included  within  the  territory  annexed  became  subject  to  taxation. 
Powers  V.  Commissioners,  8  Ohio  St.  285;  Blanchard  v.  Bissell,  11 
Ohio  St.  96.  In  both  of  these  cases  it  was  held  that  the  annexation 
might  be  made  without  the  consent,  and  even  against  the  remonstrance, 
of  a  majority  of  the  persons  residing  on  the  annexed  territory,  that 
the  lands  thus  annexed  were  liable  to  local  taxation  for  the  payment 
of  the  pre-existing  indebtedness  of  the  municipality,  and  that  the  stat- 
ute authorizing  such  annexation  was  constitutional ;  the  court  saying 
in  the  first  of  the  cases  that  there  is  no  constitutional  provision  on  the 
subject,  and  that  "it  would  require  a  very  artificial  and  unsound  mode 
of  reasoning  to  hold  that  territory  could  not  be  annexed  to  a  town 
which  owed  debts  until  the  owner  of  such  territory  were  paid  a  com- 
pensation in  money  for  a  proportional  part  of  such  debt,  on  the  ground 
that  the  property  annexed  was  condemned  for  public  use,"  and,  fur- 
ther, that  it  is  not  "to  be  presumed  that  a  municipal  corporation  has 
contracted  a  debt  without  being  correspondingly  benefited."  And  in 
Metcalf  V.  State,  49  Ohio  St.  586,  31  N.  E.  1076,  a  statute  was  held 
valid  which,  in  terms,  detached  from  a  city,  without  its  consent,  terri- 
tory included  in  its  corporate  limits,  and  attached  to  it  another  taxing 
jurisdiction. 

The  principle  established  by  these  cases  must  control  the  decision  of 
this  one,  so  far  as  the  question  now  under  consideration  is  concerned, 
unless,  as  counsel  for  the  plaintiff  contend,  the  principle  is  inapplicable 
on  account  of  the  nature  of  the  indebtedness  of  the  defendant,  or  be- 
cause the  territory  proposed  to  be  annexed  is  already  embraced  in 
organized  municipalities.  The  indebtedness  of  the  defendant,  which, 
it  is  claimed,  distinguishes  this  case  from  those  above  referred  to,  is 
that  incurred  for  what  is  known  as  the  Cincinnati  Southern  Railroad, 
for  waterworks,  city  hall,  and  some  other  local  improvements,  aggre- 
gating many  millions  of  dollars.  It  does  not  appear  what  was  the 
nature  or  amount  of  the  indebtedness  of  the  respective  municipalities 
involved  in  the  cases  of  Powers  v.  Commissioners,  or  Blanchard  v. 
Bissell ;  and  it  should  be  presumed,  counsel  claim,  that  it  was  created 
for  the  necessary  or  usual  governmental  purposes,  and  not  for  local 
improvements.  Allowing  the  presumption,  it  is  not  perceived  how  the 
amount  or  nature  of  the  municipal  indebtedness  can  affect  the  right  of 


CONSOLIDATION  73 

annexation,  if  it  be  otherwise  legal ;  for  the  power  to  bring  into  a 
municipal  corporation,  by  annexation,  property  not  theretofore  subject 
to  taxation  for  municipal  purposes,  and  lay  taxes  upon  it  to  raise 
funds  for  the  payment  of  any  previously  existing  municipal  debt, 
necessarily  includes  the  power  to  do  so  for  the  payment  of  every  such 
debt  lawfully  incurred.  Persons  thus  brought  into  the  annexing  cor- 
poration, and  their  property,  like  all  of  its  other  inhabitants  and  their 
property,  receive  and  enjoy  the  benefits  of  all  local  improvements,  and 
should  share  the  burdens  existing  when  the  enjoyment  commences; 
and.  in  like  manner,  the  inhabitants  of  the  annexing  corporation  enjoy 
the  benefits  and  share  the  burdens  arising  from  the  local  improvements 
of  the  municipalities  annexed. 

If  a  valid  objection  to  the  annexation  could  be  predicated  upon  the 
nature  of  the  indebtedness  for  the  payment  of  which  the  property 
included  in  the  annexation  may  be  taxed  without  the  consent  of  its 
owners,  the  reason  would  seem  to  be  stronger  for  allowing  it  where 
the  debt  was  incurred  for  purely  governmental  purposes ;  for  the  ben- 
efits derived  therefrom  are  not  continuing,  nor  the  results  tangible, 
like  those  arising  from  permanent  public  improvements,  but  may  have 
entirely  ceased,  and  so  be  no  longer  capable  of  enjoyment  by  the  per- 
sons included  in  the  annexation,  except  what  may  be  attributed  to 
good  municipal  government  resulting  from  the  expenditure.  But  the 
power  of  taxation  does  not  rest  upon  the  consent  of  the  taxed,  except 
as  that  consent  is  implied  or  shown  in  the  enactment  of  laws  by  the 
representatives  of  the  people,  or  is  made  requisite  by  legislation ;  and 
therefore  taxes  may  be  imposed,  or  authorized  by  the  legislative  body, 
within  its  discretion,  for  all  public  purposes,  so  long  as  the  fundamen- 
tal law  is  not  violated.  We  cannot  think  that  because  the  annexation 
authorized  by  the  statute  may  result  in  the  taxation  of  property,  with- 
out the  owner's  consent,  for  the  payment  of  the  lawful  indebtedness 
of  the  annexing  corporation,  the  passage  of  the  act  was  a  usurpation 
of  legislative  power.  If  either  of  the  municipalities  sought  to  be  an- 
nexed should  be  the  owner  of  private  property  which  may  be  taxed, 
it  stands  on  the  same  footing  as  other  owners  of  private  property. 
Its  rights  can  be  no  greater  than  theirs,  and  hence  there  can  be  no 
more  necessity  for  its  consent  than  for  theirs ;  and  property  held  by 
it  for  public  purposes  will  continue  to  be  held  for  such  ]Hu-poscs,  after 
the  annexation  is  completed,  until  other  lawful  disposition  is  made 
of  it. 

Nor  do  we  think  the  general  assembly  exceeded  its  legislative  power 
in  authorizing  (lie  annexation  of  nnmicipahtics  of  a  lower  grade  to 
one  of  a  higlicr  grade.  Grant  its  i)owers  to  annex,  or  provide  for 
aimexing  to  a  city  or  village,  adjacent  territory,  against  the  will  of  its 
owners  and  occupants,  and  there  does  not  appear  to  be  any  satisfac- 
tory reason  for  denying  the  power  where  the  territory  is  coextensive 
wiih  the  boundaries  of  another  municipal  corporation,  especially  when 


74  ALTERATION    AND    DISSOLUTION 

there  is  no  such  limitation  in  the  constitution.  It  is  maintained  by 
very  high  authority  that  it  is  clearly  within  the  legislative  discretion 
to  extend  or  restrict  the  boundaries  of  municipal  corporations,  "or 
consolidate  two  or  more  into  one."  Cooley,  Const.  Lim.  (6th  Ed.) 
228.  And  it  is  declared  by  Mr.  Justice  Clifford  in  Mt.  Pleasant  v. 
Beckwith,  100  U.  S.  515-524,  25  L.  Ed.  699,  to  be  the  constant  prac- 
tice for  legislative  bodies  to  divide  or  consolidate  municipal  corpora- 
tions, and  that  such  action  is  often  necessary  for  the  public  interests 
and  convenience.  And  in  Meriwether  v.  Garrett,  102  U.  S.  472-511 
(26  L.  Ed.  197)  it  is  said  by  Mr.  Justice  Field:  "Municipal  corpora- 
tions are  mere  instruments  of  the  state,  for  the  more  convenient  ad- 
ministration of  local  government.  Their  powers  are  such  as  the  legis- 
lature may  confer,  and  these  may  be  enlarged,  abridged,  or  entirely 
withdrawn,  at  its  pleasure.  This  is  common  learning,  found  in  all 
adjudications  on  the  subject  of  municipal  bodies,  and  repeated  by  text 
writers.  There  is  no  contract  between  the  state  and  the  public  that  a 
charter  of  a  city  shall  not  be  at  all  times  subject  to  legislative  control. 
There  is  no  such  thing  as  a  vested  right,  held  by  any  individuals,  in 
the  grant  of  legislative  power  to  them."  Many  other  authorities,  much 
to  the  same  effect,  are  cited  in  the  brief  of  counsel  for  the  defendant, 
which  we  deem  it  unnecessary  to  notice  further.  We  have  been  re- 
ferred to  none  maintaining  the  contrary  doctrine,  and  have  found 
none. 

In  the  light  of  these  authorities,  we  would  be  unwarranted  in  hold- 
ing that  the  legislature  transcended  its  powers  in  passing  the  act  in 
question;  and,  observing  in  this  case  the  well-established  rule  that 
the  courts  should  not  declare  a  statute  unconstitutional  unless  con- 
vinced that  it  is  clearly  so,  we  hold  the  statute,  in  all  respects,  constitu- 
tional and  valid.  *  *  *  'phg  defendant,  having  shown  that  it  is 
lawfully  possessed  of  the  privileges  and  franchises  it  is  charged  with 
exercising,  is  entitled  to  judgment.     Judgment  accordingly. 


III.  Operation  and  Effect  of  Annexation  Division  or  Con- 
solidation ^ 


MT.  PLEASANT  v.  BECKWITH. 

(Supreme  Court  of  United  States,  1879.    100  U.  S.  514,  25  L.  Ed.  699.) 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the  East- 
ern District  of  Wisconsin. 

Mr.  Justice  Clifford  delivered  the  opinion  of  the  court.^ 

«  For  discussion  of  principles,  see  Cooley,  Mun.  Corp.  §  35. 
7  Part  of  the  opinion  is  omitted. 


ANNEXATION   DIVISION   OR   CONSOLIDATION  <0 

Explicit  authority  from  the  legislature  was  given  to  the  super- 
visors of  the  town  of  Racine  to  subscribe  for  the  stock  of  the  rail- 
road company  mentioned  in  the  act  conferring  the  power,  to  an 
amount  not  exceeding  $50,000,  provided  a  majority  of  the  legal  vot- 
ers of  the  municipality,  at  a  meeting  of  the  town  duly  called  and  held 
for  the  purpose,  shall  vote  in  favor  of  making  the  proposed  subscrip- 
tion.    Sess.  Laws  Wis.  1853,  p.  11. 

Pursuant  to  that  authority,  the  proper  ofBcers  of  the  town,  on  the 
6th  of  December,  1853,  subscribed  for  the  capital  stock  of  the  rail- 
road company  to  the  amount  of  $50,000,  and  issued  one  hundred 
bonds  of  the  corporation,  each  in  the  sum  of  $500,  in  payment  of 
the  subscription  for  the  stock.     *     *     * 

Sufficient  appears  to  show  that  on  the  2d  of  January,  1838,  the 
town  of  Racine  and  the  town  of  Alt.  Pleasant  were  by  the  same  act 
created  municipal  corporations,  with  boundaries  as  set  forth  in  the 
bill  of  complaint.     Laws  Wis.  1838,  p.  168. 

Four  years  later,  the  town  of  Caledonia  was  incorporated,  her 
territory  being  taken  from  the  two  tow^ns  before  mentioned,  with- 
out any  provision  being  made  that  the  new  town  should  bear  any 
portion  of  the  indebtedness  of  either  of  the  old  towns.  Priv.  Laws 
1842,  p.  10. 

Both  parties  concur  in  these  propositions,  and  it  appears  that  the 
city  of  Racine,  which  is  a  distinct  municipality  from  the  town  by  the 
same  name,  was  incorporated  by  the  act  of  the  8th  of  August,  1848, 
with  boundaries  as  correctly  set  forth  in  the  transcript.  Id.  1848,  p. 
80.     *     *     * 

Additional  territory  was  subsequently  taken  from  the  town  of 
Racine  and  was  annexed  to  the  city  of  Racine,  and  by  a  still  later 
act  another  fraction  of  her  territory  was  annexed  to  the  town  of 
Mt.  Pleasant,  neither  act  containing  any  regulations  as  to  existing 
indebtedness.     Id.    1856,  pp.  148-416. 

Prior  to  that,  to  wit,  on  the  6lh  of  March  in  the  same  year,  the 
legislature  of  the  state,  by  an  act  of  that  date,  annexed  a  much  larger 
tract,  taken  from  the  towns  of  Racine  and  Mt.  Pleasant,  to  the  city 
of  Racine,  as  described  in  the  record ;  but  the  supreme  court  of  the 
state  decided  that  a  certain  feature  of  the  act  was  unconstitutional 
and  void.     Slauson  v.  City  of  Racine,   13  Wis.  398. 

In  consequence  of  that  decision,  the  towns  from  which  the  terri- 
tory annexed  was  taken  continued  to  exercise  jurisdiction  over  it 
for  the  period  of  fifteen  years  longer,  until  a  portion  of  the  same 
territory  then  constituting  a  part  of  the  town  of  Mt.  Pleasant  was 
again  annexed  to  the  city  of  Racine,  on  the  condition  that  the  city 
"shall  assume  and  pay  so  much  of  the  miniicipal  indebtedness  of  the 
town  as  the  lands  describefl  in  the  first  section  of  that  act  may  be 
or  become  legally  chargeable  with  and  liable  to  pay."  Priv.  Laws 
•Wis.   1871,  p.  7i7>. 


76  ALTERATION   AND    DISSOLUTION 

Thronjjhout  these  several  changes,  except  the  last,  the  annexa- 
tion in  every  instance  was  made  without  any  regulation  that  the  town 
to  which  the  territory  was  annexed  should  pay  any  portion  of  the 
indebtedness  of  the  town  from  which  the  territory  annexed  was 
taken.  Still  not  satisfied,  the  legislature,  by  the  act  of  the  23d  of 
February,  1857,  rearranged  the  boundaries  of  each  of  the  three 
towns,  as  therein  is  fully  set  forth  and  described.     Id.  1857,  p.  103. 

Two  years  later,  the  county  supervisors  changed  the  name  of  the 
town  of  Racine  to  Orwell ;  but  the  prior  name  will  be  used  through- 
out in  this  opinion,  as  less  likely  to  produce  confusion  in  the  state- 
ment of  facts.  From  the  time  the  legislature  rearranged  the  bound- 
aries of  the  three  towns  they  remained  without  alteration  until  the 
legislature,  March  30,  1860,  by  a  public  act,  vacated  and  extinguished 
the  corporation  and  body  politic  known  as  the  town  of  Racine, 
then  called  Orwell,  and  enacted  that  thereafter  it  should  have  no 
existence  as  a  body  politic  and  corporate.  Sess.  Laws  Wis.  1860, 
p.  218. 

Section  2  of  the  act  also  provided  that  all  that  part  of  the  terri- 
tory of  the  town  lying  north  of  the  described  line  should  be  annexed 
to  and  hereafter  form  a  part  of  the  town  of  Caledonia,  and  that  all 
that  part  of  the  territory  lying  south  of  that  hne  should  become  and 
continue  to  be  a  part  of  Mt.   Pleasant.     *     *     * 

Counties,  cities,  and  towns  are  municipal  corporations  created  by 
the  authority  of  the  legislature,  and  they  derive  all  their  powers  from 
the  source  of  their  creation,  except  where  the  constitution  of  the 
state  otherwise  provides.  They  have  no  inherent  jurisdiction  to 
make  laws  or  to  adopt  governmental  regulations,  nor  can  they  ex- 
ercise any  other  powers  in  that  regard  than  such  as  are  expressly 
or  impliedly  derived  from  their  charters  or  other  statutes  of  the 
state. 

Corporations  of  the  kind  are  composed  of  all  the  inhabitants  of 
the  territory  included  within  the  political  organization,  each  indi- 
vidual being  entitled  to  participate  in  its  proceedings;  but  the  pow- 
ers of  the  organization  may  be  modified  or  taken  away  at  the  mere 
will  of  the  legislature,  according  to  its  own  views  of  public  con- 
venience, and  without  any  necessity  for  the  consent  of  those  compos- 
ing the  body  politic.  Corporate  rights  and  privileges  are  usually 
possessed  by  such  municipalities;  and  it  is  equally  true  that  they 
are  subject  to  certain  legal  obligations  and  duties,  which  may  be 
increased  or  diminished  at  the  pleasure  of  the  legislature,  from  which 
all  their  powers  are  derived. 

Institutions  of  the  kind,  whether  called  cities,  towns,  or  counties, 
are  the  auxiliaries  of  the  state  in  the  important  business  of  munici- 
pal rule;  but  they  cannot  have  the  least  pretension  to  sustain  their 
privileges  or  their  existence  upon  any  thing  like  a  contract  between 
themselves  and  the  legislature  of  the  state,  because  there  is  not  and 


ANNEXATION   DIVISION    OK   CONSOLIDATION  77 

cannot  be  any  reciprocity  of  stipulation  between  the  parties,  and  for 
the  further  reason  that  their  objects  and  duties  are  utterly  incom- 
patible with  every  thing  partaking  of  the  nature  of  compact. 

Instead  of  that,  the  constant  practice  is  to  divide  large  municipali- 
ties and  to  consolidate  small  ones,  or  set  off  portions  of  territory 
from  one  and  annex  it  to  another,  to  meet  the  wishes  of  the  resi- 
dents or  to  promote  the  public  interests  as  understood  by  the  legis- 
lature,— it  being  everywhere  understood  that  the  legislature  pos- 
sesses the  power  to  make  such  alterations  and  to  apportion  the 
common  property  and  burdens  as  to  them  may  seem  just  and  eq- 
uitable. 

Alterations  of  the  kind  are  often  required  to  promote  the  public 
interests  or  the  convenience  and  necessities  of  the  inhabitants;  and 
the  public  history  shows  that  it  has  been  the  constant  usage  in  the 
states  to  enlarge  or  diminish  the  power  of  towns,  to  divide  their 
territory  by  set-off  and  annexation,  and  to  make  new  towas  when- 
ever the  legislature  deems  it  just  and  proper  that  such  a  change 
should  be  made.  Old  towns  may  be  divided  and  new  ones  incor- 
porated out  of  parts  of  the  territory  of  those  previously  organized ; 
and  in  enacting  such  regulations  the  legislature  may  apportion  the 
common  property  and  the  common  burdens,  and  may,  as  between 
the  parties  in  interest,  settle  all  the  terms  and  conditions  of  the  di- 
vision of  their  territory,  or  the  alteration  of  the  boundaries  as 
fixed  by  any  prior  law. 

State  legislation  may  regulate  the  subject;  but  if  the  legislature 
omits  to  do  so,  the  presumption,  as  between  the  parties,  is  that  they 
did  not  consider  that  any  regulation  was  necessary.  Where  none 
is  made,  in  case  of  division  the  old  corporation  owns  all  the  public 
property  within  her  new  limits,  and  is  responsible  for  all  the  debts 
of  the  corporation  contracted  before  the  act  of  separation  was 
passed.  Debts  previously  contracted  must  be  paid  entirely  by  the 
old  corporation,  nor  has  the  new  municipality  any  claim  to  any 
portion  of  the  public  property,  except  what  falls  within  her  bound- 
aries, and  to  that  the  old  corporation  has  no  claim  whatever.  Lar- 
amie Co.  V.  Albany  Co.,  92  U.  S.  307 ;  Bristol  v.  New  Chester,  3  N. 
H.  521. 

Apply  these  principles  to  the  admitted  facts  of  the  case,  and  it  is 
clear  that  every  one  of  the  described  changes  made  in  the  limits  and 
boundaries  of  the  rcsponflcnt  niunicii)alilies  become  wholly  inuna- 
terial  in  this  investigation,  except  the  last  two,  as  hereafter  more 
fully  explained. 

Before  the  passage  of  those  two  acts,  the  claim  of  the  complain- 
ant against  the  town  of  Kacinc  was,  beyond  all  qucstic^n,  valid  and 
collectible.  Nobody  controverts  that  proposition,  and  it  is  clear 
that  no  defence  to  the  action  could  have  been  sustained  for  a  mo- 
ment.    I5y  the  act   of   March  30,   1S60.   the  legislature  of  the   state 


78  ALTEUATION    AND    DISSOLUTION 

vacated  and  extinguished  the  corporation  and  body  politic  formerl)' 
known  as  Racine,  then  called  Orwell,  and  annexed  the  whole  area 
of  the  territory  included  in  the  municipality  to  the  two  adjacent 
towns  of  ]\It.  Pleasant  and  Caledonia,  in  the  proportions  and  by 
the  boundary  lines  described  in  the  second  section  of  the  legislative 
act.  Had  legislation  stopped  there,  it  is  clear  that  the  city  of  Ra- 
cine would  not  have  been  liable  for  any  portion  of  the  debt  of  the 
extinguished  municipal  corporation ;  but  it  did  not  stop  there,  as  ap- 
pears by  what  follows. 

Prior  to  the  passage  of  that  act,  the  old  town  of  Racine  was  the 
sole  obligor  in  the  bonds  held  by  the  complainant;  and  there  cer- 
tainly is  nothing  in  the  provisions  of  that  act  which  tends  in  the 
least  degree  to  create  any  liability  on  the  part  of  any  other  munici- 
pality for  the  indebtedness  of  that  town,  except  the  towns  of  Mt. 
Pleasant  and  Caledonia.  Nothing  had  previously  occurred  to  cre- 
ate any  liability  on  the  part  of  the  city  of  Racine  to  pay  any  pro- 
portion of  the  debts  of  the  old  town  of  Racine,  which  issued  the 
bonds  described  in  the  bill  of  complaint. 

Until  the  passage  of  the  act  of  the  17th  of  March,  1871,  the  rights 
of  all  parties  remained  unchanged.  By  that  act  a  portion  of  the 
territory  formerly  belonging  to  the  old  town  of  Racine  was  set  ofif 
from  the  town  of  Mt.  Pleasant  and  was  annexed  to  the  city  of  Ra- 
cine. Appended  to  that  act,  and  a  part  of  it,  was  the  provision 
that  the  city  to  which  the  described  territory  was  annexed  "shall 
assume  and  pay  so  much  of  the  indebtedness  of  the  town  of  Racine 
as  the  lands  described  in  the  first  section  of  the  act  may  be  or  be- 
come legally  chargeable  with  and  liable  to  pay."     Priv.  Laws  Wis. 

1871,  p.  723. 

Enough  appears  in  that  provision  of  direct  legislation  to  show  that 
the  city  of  Racine  was  thereby  made  liable  for  the  debts  of  the  ex- 
tinguished town  of  Racine  in  the  proportion  therein  described ;  and 
the  clear  inference  from  the  provision  is  that  the  town  of  Mt.  Pleas- 
ant, prior  to  the  passage  of  that  act,  was  liable  for  the  debts  of  that 
old  municipality  in  proportion  to  the  whole  extent  of  the  territory 
annexed  to  her  by  the  prior  act  which  extinguished  the  old  munici- 
pal corporation.  None,  it  is  presumed,  will  deny  the  liability  of  the 
city  of  Racine  for  those  debts  in  the  proportion  described  in  the  act 
creating  the  liability,  and  hence  it  is  that  the  corporate  authorities 
of  the  city  acquiesced  in  the  decree  of  the  circuit  court  without  ap- 
peal. 

Parties  who  do  not  appeal  from  the  final  decree  of  the  circuit  court 
cannot  be  heard  in  opposition  to  the  same  when  the  case  is  regularly 
brought  here  by  other  proper  parties.  They  may  be  heard  in  sup- 
port of  the  decree  and  in  opposition  to  every  assignment  of  error, 
but  they  cannot  be  heard  to  show  that  the  decree  below  was  erro- 
neous.   The  Stephen  Morgan,  94  U.  S.  599. 


ANNEXATION   DIVISION   OR   CONSOLIDATION  79 

Concede  that,  and  it  follows  that  the  only  question  open  in  the 
case  for  examination  is  whether  the  other  two  respondent  municipal 
corporations  are  liable  to  any  extent  for  the  debts  of  the  extin- 
guished municipality,  portions  of  whose  territory  were  transferred  by 
the  legislature  into  their  respective  jurisdictions.  We  say,  liable  to 
any  extent,  because  the  question  of  amount  was  submitted  to  the 
master,  and  the  record  shows  that  neither  of  the  appellants  excepted 
to  the  master's  report.  Gordon  v.  Lewis,  2  Sumn.  143,  Fed.  Cas. 
No.  5,613;  McMicken  v.  Perin,  18  How.  507,  15  L.  Ed.  504.  Nor 
do  either  of  the  assignments  of  error  allege  that  the  master  commit- 
ted any  error  in  that  regard.  Brockett  v.  Brockett,  3  How.  691, 
11  L.  Ed.  786. 

Viewed  in  that  light,  as  the  case  should  be,  it  is  clear  that  if  the 
appellants  are  liable  at  all  they  are  liable  for  the  respective  amounts' 
specified  in  the  decree.  Harding  v.  Handy,  11  Wheat.  103,  6  L.  Ed. 
429.     Story  v.  Livingston,  13  Pet.  359,  10  L.  Ed.  200. 

Where  one  town  is  by  a  legislative  act  merged  in  two  others,  it 
would  doubtless  be  competent  for  the  legislature  to  regulate  the 
rights,  duties,  and  obligations  of  the  two  towns  whose  limits  are  thus 
enlarged;  but  if  that  is  not  done,  then  it  must  follow  that  the  two 
towns  succeed  to  all  the  public  property  and  immunities  of  the  ex- 
tinguished municipality.  Morgan  v.  City  and  Town  of  Beloit,  7 
Wall.  613,  617,  19  L.  Ed.  203.^ 

It  is  not  the  case  where  the  legislature  creates  a  new  town  out  of 
a  part  of  the  territory  of  an  old  one,  without  making  provision  for 
the  payment  of  the  debts  antecedently  contracted,  as  in  that  case 
it  is  settled  law  that  the  old  corporation  retains  all  the  public  prop- 
erty not  included  within  the  limits  of  the  new  municipality,  and  is 
liable  for  all  the  del)ts  contracted  by  her  before  the  act  of  separa- 
tion was  passed.  Town  of  Depere  v.  Town  of  Bellevue,  31  Wis. 
120,  125,  11  Am.  Rep.  602. 

Instead  of  that,  it  is  the  case  where  the  charter  of  one  corpora- 
tion is  vacated  and  rendered  null,  the  whole  of  its  territory  being  an- 
nexed to  two  others.  In  such  a  case,  if  no  legislative  arrange- 
ments are  made,  the  effect  of  the  annulment  and  annexation  will  be 
that  the  two  enlarged  corporations  will  be  entitled  to  all  the  public 
property  and  immunities  of  the  one  that  ceases  to  exist,  and  tliat 
they  will  become  liable  for  all  the  legal  debts  contracted  by  her 
prior  to  the  time  when  the  annexation  is  carried  into  operation. 

Speaking  to  the  same  point,  the  supreme  court  of  Missouri  held 
that  where  one  corporation  goes  entirely  out  of  existence  by  being 
annexed  to  f)r  merged  in  another,  if  no  arrangements  arr  made  re- 
specting the  i)roperly  and  liabilities  of  the  corporation  that  ceases  to 
exist,  the  subsisting  corpf)ration  will  be  entitled  t(j  all  the  jiroperty 
and  be  answerable  for  all  the  liabilities.  Thompson  v.  Abbott,  61 
Mo.  176,  177. 


80  ALTERATION   AND    DISSOLUTION 

Grant  that,  and  it  follows  that  when  the  corporation  first  named 
ceases  to  exist  there  is  then  no  power  left  to  control  in  its  behalf 
any  of  its  funds,  or  to  pay  ofif  any  of  its  indebtedness.  Its  property 
passes  into  the  hands  of  its  successor,  and  when  the  benefits  are 
taken  the  burdens  are  assumed,  the  rule  being  that  the  successor 
who  takes  the  benefits  must  take  the  same  cum  onere,  and  that  the 
successor  town  i,s  thereby  estopped  to  deny  that  she  is  liable  to  re- 
spond for  the  attendant  burdens.  Swain  v.  Seamens,  9  Wall.  254, 
274,  19  L.  Ed.  554;  Pickard  v.  Sears,  6  Adol.  &  E.  474. 

Powers  of  a  defined  character  are  usually  granted  to  a  municipal 
corporation,  but  that  does  not  prevent  the  legislature  from  exercis- 
ing unlimited  control  over  their  charters.  It  still  has  authority  to 
amend  their  charters,  enlarge  or  diminish  their  powers,  extend  or 
limit  their  boundaries,  consolidate  two  or  more  into  one,  overrule 
their  legislative  action  whenever  it  is  deemed  unwise,  impolitic,  or 
unjust,  and  even  abolish  them  altogether,  in  the  legislative  discre- 
tion, and  substitute  in  their  place  those  which  are  different.  Cooley, 
Const.  Lim.  (4th  Ed.)  232. 

Municipal  corporations,  says  Mr.  Justice  Field,  so  far  as  they 
are  invested  with  subordinate  legislative  powers  for  local  purposes, 
are  mere  instrumentalities  of  the  state  for  the  convenient  administra- 
tion of  their  alifairs ;  but  when  authorized  to  take  stock  in  a  railroad 
company,  and  issue  their  obligations  in  payment  of  the  stock,  they 
are  to  that  extent  to  be  deemed  private  corporations,  and  their  obli- 
gations are  secured  by  all  the  guaranties  which  protect  the  engage- 
ments of  private  individuals.  Broughton  v.  Pensacola,  93  U.  S. 
266,  269,  23  L.  Ed.  896. 

Modifications  of  their  boundaries  may  be  made,  or  their  names 
may  be  changed,  or  one  may  be  merged  in  another,  or  they  may  be 
divided  and  the  moieties  of  their  territory  may  be  annexed  to  oth- 
ers ;  but  in  all  these  cases,  if  the  extinguished  municipality  owes  out- 
standing debts,  it  will  be  presumed  in  every  such  case  that  the  leg- 
islature intended  that  the  liabilities  as  well  as  the  rights  of  prop- 
erty of  the  corporation  which  thereby  ceases  to  exist  shall  accom- 
pany the  territory  and  property  into  the  jurisdiction  to  which  the 
territory  is  annexed.     Colchester  v.  Seaber,  3  Burrows,  1866. 

Neither  argument  nor  authority  is  necessary  to  prove  that  a  state 
legislature  cannot  pass  a  valid  law  impairing  the  obligations  of  a 
contract,  as  that  general  proposition  is  universally  admitted.  Con- 
tracts under  the  constitution  are  as  sacred  as  the  constitution  that 
protects  them  from  infraction,  and  yet  the  defence  in  this  case,  if 
sustained,  will  establish  the  proposition  that  the  efifect  of  state  legis- 
lation may  be  such  as  to  deprive  a  party  of  all  means  of  sustaining 
an  action  of  any  kind  for  their  enforcement.  Cases,  doubtless,  may 
arise  when  the  party  cannot  collect  what  is  due  under  the  contract; 


ANNEXATION    DIVISION   OK   CONSOLIDATION  81 

but  he  ought  ahvays  to  be  able  by  some  proper  action  to  reduce  his 
contract  to  judgment. 

Suppose  it  be  admitted  that  the  act  of  the  state  legislature  an- 
nulling the  charter  of  the  municipality  indebted  to  the  complainant, 
without  making  any  provision  for  the  payment  of  outstanding  in- 
debtedness, was  unconstitutional  and  void,  still  it  must  be  admitted 
that  the  very  act  which  annulled  that  charter  annexed  all  the  terri- 
tory and  property  of  the  municipality  to  the  two  appellant  towns, 
and  that  they  acquired  with  that  the  same  power  of  taxation  over 
the  residents  and  their  estates  that  they  previously  possessed  over 
the  estates  of  the  inhabitants  resident  within  their  limits  before  their 
boundaries  were  enlarged. 

Extinguished  municipal  corporations  neither  own  property,  nor 
have  they  any  power  to  levy  taxes  to  pay  debts.  Whatever  power 
the  extinguished  municipality  had  to  levy  taxes  when  the  act  passed 
annulling  her  charter  terminated,  and  from  the  moment  the  annexa- 
tion of  her  territory  was  made  to  the  appellant  towns,  the  power  to 
tax  the  property  transferred,  and  the  inhabitants  residing  on  it,  be- 
came vested  in  the  proper  authorities  of  the  towns  to  which  the  ter- 
ritory and  jurisdiction  were  by  that  act  transferred ;  from  which  it 
follows  that  for  all  practical  purposes  the  complainant  was  left  with- 
out judicial  remedy  to  enforce  the  collection  of  the  bonds  or  to  re- 
cover judgment  for  the  amounts  they  represent. 

When  the  appellant  towns  accepted  the  annexation,  their  authori- 
ties knew,  or  ought  to  have  known,  that  the  extinguished  municipal- 
ity owed  debts,  and  that  the  act  effecting  the  annexation  made  no  pro- 
vision for  their  payment.  They  had  no  right  to  assume  that  the 
annulment  of  the  charter  of  the  old  town  would  have  the  effect  to 
discharge  its  indebtedness,  or  to  impair  the  obligation  of  the  con- 
tract held  by  its  creditors  to  enforce  the  same  against  those  holding 
the  territory  and  jurisdiction  by  the  authority  from  the  legislature 
and  the  public  property  anrl  the  power  of  taxation  previously  held 
and  enjoyed  by  the  extinguished  municipality. 

Express  provision  was  made  by  the  act  annulling  the  charter  of 
the  debtor  municipality  for  annexing  its  territory  to  the  appellant 
towns ;  and,  when  the  annexation  became  complete,  the  power  of 
taxation  previously  vested  in  the  inhabitants  of  the  annexed  terri- 
tory as  a  separate  municipality  ceased  to  exist,  whether  to  pay  debts 
or  for  any  other  purpose, — the  reason  being  that  the  power,  so  far 
as  rcspecterl  its  future  exercise,  was  transferred  with  the  territory 
and  the  jurisdiction  over  its  inhabitants  to  the  ai)pcllant  towns,  as 
enlarged  by  the  annexed  territory;  from  which  it  follows,  unless  it 
be  held  that  the  extinguishment  of  the  debtor  municipality  dis- 
charged its  debts  without  payment,  which  the  cf)nstitution  forbids, 
that  the  appellant  towns  assumed  each  a  proportionate  share  of  the 
CooLEY  Ca.seh  Mun.C. — 6 


82  ALTERATION   AND    DISSOLUTION 

outstanding  obligations  of  the  debtor  town  when  they  acquired  the 
territory,  pubHc  property,  and  municipal  jurisdiction  over  every 
thing  belonging  to  the  extinguished  municipality. 

Corporations  of  a  municipal  character,  such  as  towns,  are  usually 
organized  in  this  country  by  special  acts  or  pursuant  to  some  gener- 
al state  law ;  and  it  is  clear  that  their  powers  and  duties  differ  in  some 
important  particulars  from  the  towns  which  existed  in  the  parent 
country  before  the  Revolution,  where  they  were  created  by  special 
charters  from  the  crown,  and  acquired  many  of  their  privileges  by 
prescription,  without  any  aid  from  parliament.  Corporate  franchis- 
es of  the  kind  granted  during  that  period  partook  much  more  large- 
ly of  the  nature  of  private  corporations  than  do  the  municipalities 
created  in  this  country,  and  known  as  towns,  cities,  and  counties. 
Power  exists  here  in  the  legislature,  not  only  to  fix  the  boundaries 
of  such  a  municipality  when  incorporated,  but  to  enlarge  or  dimin- 
ish the  same  subsequently,  without  the  consent  of  the  residents,  by 
annexation  or  set-off,  unless  restrained  by  the  constitution,  even 
against  the  remonstrance  of  every  property  holder  and  voter  within 
the  limits  of  the  original  municipality. 

Property  set  off  or  annexed  may  be  benefited  or  burdened  by  the 
change,  and  the  liability  of  the  residents  to  taxation  may  be  increased 
or  diminished ;  but  the  question,  in  every  case,  is  entirely  within  the 
control  of  the  legislature,  and,  if  no  provision  is  made,  every  one 
must  submit  to  the  will  of  the  state,  as  expressed  through  the  legis- 
lative department.  Inconvenience  will  be  suffered  by  some,  while 
others  will  be  greatly  benefited  in  that  regard  by  the  change.  Nor 
is  it  any  objection  to  the  exercise  of  the  power  that  the  property  an- 
nexed or  set  off  will  be  subjected  to  increased  taxation,  or  that  the 
town  from  which  it  is  taken  or  to  which  it  is  annexed  will  be  benefit- 
ed or  prejudiced,  unless  the  constitution  prohibits  the  change,  since 
it  is  a  matter,  in  the  absence  of  constitutional  restriction,  which  be- 
longs wholly  to  the  legislature  to  determine.  Courts  everywhere  in 
this  country  hold  that,  in  the  division  of  towns,  the  legislature  may 
apportion  the  burdens  between  the  two,  and  may  determine  the 
proportion  to  be  borne  by  each.  Sill  v.  Village  of  Corning,  15  N. 
Y.  297;  Mayor,  etc.,  of  City  of  Baltimore  v.  State,  15  Md.  376,  74 
Am.  Dec.  572;  City  of  Olney  v.  Harvey,  50  111.  453,  99  Am.  Dec. 
530;  Borough  of  Dunsmore's  Appeal,  52  Pa.  374. 

Public  property  and  the  subordinate  rights  of  a  municipal  corpo- 
ration are  within  the  control  of  the  legislature ;  and  it  is  held  to  be 
settled  law  that,  where  two  separate  towns  are  created  out  of  one, 
each,  in  the  absence  of  any  statutory  regulation,  i.s  entitled  to  hold 
in  severalty  the  public  property  of  the  old  corporation  which  falls 
within  its  limits.  North  Hempsted  v.  Hempsted,  2  Wend.  109; 
Hartford  Bridge  Co.  v.  East  Hartford,  16  Conn.  149,  171.  *  *  " 
Affirmed. 


ANNEXATION   DIVISION    OR   CONSOLIDATION  83 

JOHNSON  V.  CITY  OF  SAN  DIEGO. 

(Supreme  Court  of  California,  1S95.    109  Cal.  468,  42  Pac.  249,  30  L.  R.  A.  178.) 

Action  by  P.  L.  Johnson  and  others  against  the  city  of  San  Diego 
to  determine  what  proportion,  if  any,  of  the  bonded  indebtedness  of 
San  Diego  was  properly  chargeable  on  certain  territory  excluded 
from  that  city.     From  the  judgment  rendered,  defendant  appeals. 

Henshaw,  J.**  Appeals  from  the  judgment  and  from  the  order 
denying  a  new  trial.  Under  an  act  of  the  legislature  approved 
March  19,  1889  (St.  1889,  p.  356),  a  portion  of  the  territory  formerly 
embraced  within  the  corporate  limits  of  the  city  of  San  Diego  was  ex- 
cluded therefrom.  The  act  referred  to  was  in  its  nature  permissive. 
It  provided  for  the  calling  of  an  election  upon  petition,  at  which 
election  the  qualified  electors  within  the  territory  proposed  to  be 
segregated  should  vote  separately  from  the  other  voters  of  the  mu- 
nicipal corporation,  and  the  votes  cast  in  such  territory  should  be 
canvassed  separately  from  the  votes  cast  by  the  other  electors  of 
the  municipality.  If  a  majority  of  the  votes  cast  in  the  territory 
proposed  to  be  excluded  and  a  majority  of  the  votes  cast  in  the 
municipality  proper  should  both  be  for  the  segregation,  then,  after 
certain  formalities  had  been  complied  with,  the  territory  should  cease 
to  be  a  part  of  the  municipal  corporation,  "provided  [so  rtms  the 
law]  that  nothing  contained  in  this  act  shall  be  held  to  relieve  in 
any  manner  whatsoever  any  part  of  such  territory  from  any  liability 
for  any  debt  contracted  by  such  municipal  corporation  prior  to  such 
exclusion :  and  provided  further  that  such  municipal  corporation  is 
hereby  authorized  to  levy  and  collect  from  any  territory  so  excluded 
from  time  to  time,  such  sums  of  money  as  .shall  be  found  due  from 
it  on  account  of  its  just  proportion  of  liability  for  any  payment  on 
the  principal  or  interest  of  such  debts.     *     *     * 

Under  this  law,  the  territory  known  as  the  "Coronado  Beach," 
which  contains  the  land  of  these  plaintiffs,  was  excluded  from  the 
corj)orate  control  of  the  city  of  San  Diego.  At  the  time  of  this  ex- 
clusion, the  city  of  San  Diego  had  a  bonded  indebtedness  of  $484,- 
000;  anfl,  after  this  exclusion,  the  city  continued  to  assess  and  levy 
taxes  upon  the  detached  territory  to  meet  the  requirements  of  this 
bonded  iM<lebtedncss,  which  taxes  tlicsc  plaintiffs  duly  paid.  In  1893 
the  legislature  passed  an  act  entitled  "An  act  jjroyiding  for  the  ad- 
justment, settlement  and  payment  of  any  indebtedness  existing  against 
any  city  or  municipal  corporation  at  the  lime  of  exclusion  of  terri- 
tory therefrom  and  the  division  of  ])roperty  thereof"  (St.  1803,  p. 
.^3^)).  Plaintiffs  availed  themselves  of  the  provision  of  this  act  to 
have  the  court  determine  wliat  proportion,  if  any,  of  the  bonded  in- 
debtedness of  San  Diego,  was  pr(jperly  chargeable  against  the  cx- 

"  I'jirt  (if  (lie  ni)ininii  Is  oinlffcd. 


84  ALTERATION   AND   DISSOLUTION 

eluded  territory.  The  demurrer  of  the  defendant  city  to  their  peti- 
tion was  overruled;  and  the  court,  after  hearing  evidence,  found  the 
existence  of  the  bonded  indebtedness ;  that  all  of  the  moneys  re- 
ceived by  the  city  and  evidenced  by  this  indebtedness  had  been  ex- 
pended for  a  sewer  system,  for  the  purchase  of  school  sites  and  the 
erection  of  school  houses,  for  refunding  a  pre-existing  debt  of  the 
city,  and  for  clearing  its  titles  to  certain  real  estate,  and  for  buying 
certain  rights  of  way ;  and  that  no  portion  of  the  money  had  been 
expended  upon  or  within  the  excluded  territory.  The  value  of  the 
property  belonging  to  the  city  at  the  time  of  the  segregation  was 
found  to  be  $600,000,  all  of  which  remained  within  its  boundaries 
and  under  its  control  after  the  segregation.  It  was  further  found 
that  the  city  of  San  Diego  had  never  made  any  improvements  in 
the  excluded  territory,  and  had  never  owned  any  property  in  it. 
The  ratio  of  the  value  of  the  excluded  territory  to  that  of  the  city 
immediately  preceding  the  exclusion  was  as  1  to  14.  Under  these 
findings,  and  in  strict  accord  with  the  dictates  of  the  statute,  the 
court  adjudged  that  there  was  nothing  due  or  to  become  due  from 
the  excluded  territory  to  the  city. 

The  chief  contention  of  the  defendant,  raised  upon  demurrer, 
pressed  in  its  motion  for  a  nonsuit,  and  urged  against  the  judgment, 
may  be  thus  stated :  The  property  owners  of  the  city  and  the  prop- 
erty owners  of  the  excluded  territory,  when,  in  accordance  with  the 
permissive  act  of  the  legislature  (St.  1889,  p.  356),  they  elected  to 
segregate  Coronado  Beach,  did  so  under  a  contract  expressed  in  the 
act  itself,  by  which  the  property  owners  of  the  excluded  territory 
were  allowed  to  remove  their  land  from  the  jurisdiction  of  the  city, 
with  the  understanding  that  they  should  continue  to  pay  their  pro 
rata  share  of  the  municipal  debts  existing  at  the  time  of  the  ex- 
clusion ;  that  the  rights  of  the  city  vested  under  this  contract  cannot 
be  destroyed  or  impaired  by  subsequent  legislation ;  and  that,  there- 
fore, to  the  parties  to  this  controversy  the  statute  of  1893  has  no 
applicability. 

This  contention  is  first  met  by  the  respondents  with  the  declara- 
tion that  the  act  of  1889  did  not  impose  or  mean  to  impose  a  pro 
rata  liability  upon  the  excluded  territory,  but  only  a  liability  for 
a  just  proportion  of  the  debt,  which  proportion  was  a  subject  of 
future  ascertainment  or  determination ;  and  much  nice  argument  is 
advanced  in  its  support.  But  the  language  of  the  proviso,  that 
"nothing  contained  in  the  act  shall  be  held  to  relieve  in  any  manner 
whatsoever  any  part  of  such  territory  from  any  liability  for  any  debt 
contracted  by  such  municipal  corporation  prior  to  such  exclusion," 
would  seem  to  be  a  comprehensive  pronunciation  that  the  segregated 
territory  should,  after  exclusion,  be  held  by  the  same  Habilities  as 
bound  it  before;  and,  as  before  its  exclusion  it  was  liable  for  its  pro 
rata  share  of  these  debts,  it  must  be  that  after  exclusion  it  remained 


ANNEXATION   DIVISION  OR  CONSOLIDATION  85 

subject  to  the  same  liabilities.  We  think,  therefore,  that,  by  the 
onlv  just  and  reasonable  interpretation  of  which  the  act  in  question  is 
susceptible,  the  legislature,  in  permitting  the  division,  exercised  its 
undoubted  power  to  adjust  the  burden  of  the  existing  corporate 
debt,  and  decreed  that  the  excluded  territory  should  continue  to 
bear  its  former  proportion  of  that  burden. 

The  question  that  is  left  for  consideration  is  that  of  the  power  of 
the  legislature  to  change  and  readjust  the  burden  of  such  an  indebt- 
edness after  having,  in  the  act  of  separation,  declared  in  what  man- 
ner it  should  be  borne.  Municipal  corporations,  in  their  public  and 
political  aspect,  are  not  only  creatures  of  the  state,  but  are  parts  of 
the  machinery  by  which  the  state  conducts  its  governmental  affairs. 
Except,  therefore,  as  restrained  by  the  constitution,  the  legislature 
may  increase  or  diminish  the  powers  of  such  a  corporation, — may 
enlarge  or  restrict  its  territorial  jurisdiction,  or  may  destroy  its  cor- 
porate existence  entirely.  Says  Cooley:  "Restraints  on  the  legis- 
lative power  of  control  must  be  found  in  the  constitution  of  the  state, 
or  they  must  rest  alone  in  the  legislative  discretion.  If  the  legisla- 
tive action  in  these  cases  operates  injuriously  to  the  municipalities 
or  to  individuals,  the  remedy  is  not  with  the  courts.  The  courts 
have  no  power  to  interfere,  and  the  people  must  be  looked  to,  to 
right,  through  the  ballot  box,  all  these  wrongs."  Cooley,  Const. 
Lim.  (6th  Ed.)  p.  229.  "A  city,"  says  Mr.  Justice  Field,  in  New 
Orleans  v.  Clark,  95  U.  S.  644,'  24  L.  Ed.  521,  "is  only  a  political 
subdivision  of  the  state,  made  for  the  convenient  administration  of 
the  government.  It  is  an  instrumentality,  with  powers  more  or  less 
enlarged,  according  to  the  requirements  of  the  public,  and  which  may 
be  increased  or  repealed  at  the  will  of  the  legislature."  This  right 
of  legislative  control,  arising  from  the  very  nature  of  the  creation 
of  such  corporations,  is  established  under  the  well-settled  doctrine 
that  such  corporations  have  no  vested  rights  in  powers  conferred 
upon  them  for  civil,  political,  or  administrative  purposes ;  or,  as  Dil- 
lon states  it :  "Legislative  acts  respecting  the  political  and  govern- 
mental powers  of  municipal  corporations  not  being  in  the  nature  of 
contracts,  the  provisions  thereof  may  be  changed  at  pleasure  where 
the  constitutional  rights  of  creditors  and  others  are  not  invaded." 
Dill.  Mun.  Corp.  (4th  Ed.)  §  63. 

The  act  of  the  legislature  in  relieving  Coronado  Beach  from  the 
corporate. control  of  San  Diego  and  in  adjusting  the  burden  of  the 
city's  debt,  was  undcjubtedly  the  exercise  of  a  proper  power  directed 
to  the  political  and  governmental  affairs  of  the  municipality.  That 
the  legislature,  by  the  terms  of  the  act  segregating  the  territory,  had 
the  right  to  dispose  of  the  common  property,  and  provide  the  mode 
and  manner  of  the  payment  of  the  common  debt,  inij)osing  its  burden 
in  such  proportions  as  it  saw  fit,  is  a  proposition  undisputed  and  in- 
disputable.   .It  is  equally  well-settled  law  that,  when  the  act  of  segre- 


86  ALTERATION    AND    DISSOLUTION 

gation  is  silent  as  to  the  common  property,  antf  common  debts,  the 
old  corporation  retains  all  the  property  within  its  new  boundaries, 
and  is  charged  with  the  payment  of  all  of  the  debts.  Upon  these 
two  propositions  the  cases  are  both  numerous  and  harmonious. 
People  V.  Alameda  Co.,  26  Cal.  641 ;  Hughes  v.  Ewing,  93  Cal.  414, 
28  Fac.  1067;  Los  Angeles  Co.  v.  Orange  Co.,  97  Cal.  329,  32  Pac. 
316;  Town  of  Depere  v.  Town  of  Bellevue,  31  Wis.  120,  11  Am. 
Rep.  602;  Laramie  County  v.  Albany  County,  92  U.  S.  307,  23  L. 
Ed.  552;  Lycoming  v.  Union,  15  Pa.  166,  53  Am.  Dec.  575;  Mount 
Pleasant  v.  Beckwkh.  100  U.  S.  514,  25  L.  Ed.  699;  Layton  v.  City 
of  New  Orleans,  12  La.  Ann.  515;  Beloit  v.  Morgan,  7  Wall.  619,  19 
L.  Ed.  205. 

There  is  authority,  however,  holding  that,  when  the  legislature  has 
spoken  in  the  original  act,  rights  vest  under  it  which  may  not  be  im- 
paired ;  and  it  is  upon  these  cases  that  appellants  rely.  Thus,  in 
Bowdoinham  v.  Richmond,  6  Greenl.  93,  19  Am.  Dec.  197,  the  su- 
preme court  of  Maine  decided  in  1829  that  as  the  act  of  the  legisla- 
ture dividing  the  town  of  Bowdoinham,  and  incorporating  a  part  of  it 
into  a  new  town,  by  the  name  of  Richmond,  enacted  that  the  latter 
should  be  held  to  pay  its  proportion  towards  the  support  of  all  pau- 
pers then  on  expense  in  Bowdoinham,  a  later  act  exonerating  the 
new  town  from  this  liability  was  void.  The  court  held  that  by  the 
former  act  a  vested  right  of  action  arose  in  favor  of  the  old  town 
against  the  new,  and  that  the  later  act,  in  destroying  this  right,  im- 
paired the  obligation  of  the  contract  on  the  part  of  Richmond  creat- 
ed by  the  first  act.  Just  how  the  court  reached  the  conclusion  that 
a  contract  was  created  by  the  first  act  is  not  plain,  but  it  seems  to 
have  been  based  somewhat  upon  the  conviction  that  the  assent  of  the 
old  town  was  necessary  to  the  segregation.  The  opinion,  however, 
looks  for  authority  to  the  case  of  Hampshire  Co.  v.  Franklin  Co. 
(decided  in  1819)  16  Mass.  76.     *     *     * 

But,  distinguished  as  are  the  courts  which  have  announced  this 
doctrine,  their  views  have  not  been  followed,  and  the  decisions  them- 
selves have  been  elsewhere  criticised  and  rejected,  until  it  may  be 
safely  said  that  it  is  the  general  rule  that,  where  the  original  act 
does  not  make  disposition  of  the  common  property  and  debts,  the 
legislature  ^may  at  any  subsequent  time,  by  later  act,  apportion 
them  in  such  manner  as  seems  to  be  just  and  equitable.  Under  the 
decisions  adopting  this  rule,  the  theory  of  vested  rights .  and  con- 
tractual relations  is  rejected  as  being  a  false  quantity  in  the  dealings 
of  the  sovereign  state  with  its  governmental  agents  and  mandato- 
ries ;  and  while  it  is  not  denied  that  the  state  may  make  a  contract 
with  a  municipal  corporation,  or  may  permit  municipal  corpora- 
tions to  enter  into  binding  contracts  with  each  other,  which  con- 
tracts it  cannot  impair,  these  contracts  must  be  in  their  nature 
private,  although  the  public  may  derive  a  common  benefit  from  them, 


ANNEXATION   DIVISION   OR   CONSOLIDATION  87 

and  the  contracting  cities  are  as  to  them  measured  by  the  same 
rules  and  entitled  to  the  same  protection  as  would  a  private  corpora- 
tion. The  subject  of  such  a  contract,  however,  can  never  be  a 
matter  of  municipal  polity  or  of  civil  or  political  power,  for  the  leg- 
islature itself  cannot  surrender  its  supremacy  as  to  these  things, 
and  thus  abandon  its  prerogatives,  and  strip  itself  of  its  inherent  and 
inalienable  right  of  control. 

Of  the  cases  so  holding,  either  directly  or  impliedly,  a  few  may 
profitably  be  mentioned:  In  County  of  Richland  v.  County  of 
Lawrence,  12  111.  1,  the  facts  were  that  the  former  county  had  been 
carved  out  of  the  territory  of  the  latter  by  an  act  making  no  dispo- 
sition of  the  county  property.  The  state  had  given  to  the  county  of 
Lawrence  a  large  sum  of  money,  which  it  held  at  the  time  of  segre- 
gation. By  a  later  act  the  legislature  declared  that  the  new  county 
should  be  entitled  to  receive  from  the  old  a  certain  proportion  of 
this  fund,  which  sum  the  old  county  refused  to  pay  under  the  claim 
of  vested  right  and  ownership.  The  supreme  court  upheld  the  act, 
declaring  that  there  was  no  contract  between  the  state  and  the  old 
county,  which  was  merely  the  state's  agent.  *  *  *  jj-j  i^ayton 
V.  City  of  New  Orleans,  12  La.  Ann.  515,  the  act  of  the  legislature 
consolidating  several  municipalities  into  one  government,  known  as 
the  "City  of  New  Orleans,"  provided  that  the  debts  of  each  should 
be  liquidated  by  taxation  upon  its  own  inhabitants.  Afterwards, 
by  another  act,  it  was  provided  that  the  debts  should  be  paid  by 
taxation  uniformly  upon  all  the  property  of  the  new  city.  The 
court  held  that  the  earlier  act  was  not  a  contract,  and  no  rights  vest- 
ed unrlcr  it ;  and  that,  as  in  these  matters  the  legislature  is  supreme, 
it  could  change  its  policy  and  readjust  these  debts.  In  Mayor,  etc., 
of  Baltimore  v.  State,  15  Md.  376,  the  court  say:  "The  doctrine 
that  there  is  a  fundamental  principle  of  right  and  justice  inherent  in 
the  nature  and  spirit  of  the  social  compact  that  rises  above  and  re- 
strains the  power  of  legislation  cannot  be  applied  to  the  legislature 
when  exercising  its  sovereignty  over  public  charters  granted  for 
the  purpose  of  government." 

Says  Dill.  Mun.  Corp.  (4th  Ed.)  §  189:  "But  upon  the  division 
of  the  old  corporation,  and  the  creation  of  a  new  corporation  out 
of  a  part  of  its  inhabitants  and  territory,  or  upon  tiie  annexation 
of  part  of  another  corporation,  the  legislature  may  provide  for  an 
equital^le  apportionment  or  division  of  the  property,  and  impose  up- 
on the  new  corporation,  or  upon  the  people  and  territory  thus  dis- 
anncxcfl,  the  obligation  to  pay  an  ef|uitable  proportion  of  the  cor- 
porate debts.  The  charters  and  constituent  acts  of  public  and  munic- 
ipal corporations  are  not,  as  we  have  before  seen,  contracts ;  and 
they  may  be  changed  at  the  jjlcasure  of  the  legislature,  subject  only 
to  the  restraints  of  special  constitutional  provisions,  if  any  there  be. 
And  it  is  an  ordinary  exercise  of  the  legislative  dominion  over  such 


88  ALTERATION    AND    DISSOLUTION 

corporations  to  provide  for  their  enlargement  or  division,  and,  in- 
cidental to  this,  to  apportion  their  property,  and  direct  the  manner 
in  which  their  debts  or  liabilities  shall  be  met,  and  by  whom.  The 
opinion  has  been  expressed  that  the  partition  of  the  property  must 
be  made  at  the  time  of  the  division  of  or  change  in  the  corporation, 
since,  otherwise,  the  old  corporation  become^,  under  the  rule  just 
above  stated,  the  sole  owner  of  the  property,  and  hence  cannot  be  de- 
prived of  it  by  a  subsequent  act  of  the  legislature.  But,  in  the  ab- 
sence of  special  constitutional  limitations  upon  the  legislature,  this 
view  cannot,  perhaps  be  maintained,  as  it  is  inconsistent  with  the 
necessary  supremacy  of  the  legislature  over  all  its  corporate  and 
unincorporate  bodies,  divisions  and  parts,  and  with  several  well- 
considered  adjudications."  To  the  same  general  effect  are  the  cases 
of  Laramie  Co.  v.  Albany  Co.,  92  U.  S.  307,  23  L.  Ed.  552 ;  Mount 
Pleasant  v.  Beckwith,  100  U.  S.  514,  25  L.  Ed.  699;  Scituate  v.  Wey- 
mouth, 108  Mass.  128;  Willimantic  School  Soc.  v.  School  Soc.  in 
Windham,  14  Conn.  457 ;  Town  of  Guilford  v.  Supervisors  of  Chen- 
ango Co.,  13  N.  Y.  143. 

In  this  state  the  power  of  the  legislature  to  make  such  subsequent 
adjustments  was  early  declared  in  People  v.  Alameda  Co.,  26  Cal. 
.641.  Alameda  county  was  created  out  of  the  territory  of  Contra 
Costa  county  in  1853.  At  the  time  of  the  separation.  Contra  Costa 
county  owed  for  a  bridge  which  had  been  constructed  upon  the 
territory  set  apart  for  Alameda  county.  The  original  act  made  no 
provision  for  the  payment  of  this  indebtedness,  which  thus  remained 
a  charge  against  the  old  county.  By  two  separate  later  acts,  the 
legislature  provided  for  the  apportionment  of  the  debt,  putting  a 
part  of  the  burden  upon  Alameda  county.  These  acts  were  upheld  as 
a  proper  exercise  of  legislative  power.  And,  indeed,  it  is  not  easy  to 
see  how  the  opposite  view  can  be  maintained.  Since  the  legislative 
power,  within  constitutional  limitations,  is  supreme  in  the  matter, 
since,  in  the  first  apportionment,  the  people  affected  are  entitled  to 
no  voice  (except  through  their  representatives),  and  since  the  act  of 
the  legislature  is  not  in  the  nature  of  a  contract,  it  cannot  logically 
be  held  that  the  power  has  been  exhausted  by  its  first  exercise.  The 
right  still  remains  to  make  such  future  adjustments  as  the  equities 
may  suggest. 

Nor,  in  the  operation  of  the  act  in  question  upon  the  city  of  San 
Diego,  can  we  perceive  any  hardship.  It  had  at  the  time  of  the 
segregation  $600,000,  acquired  while  Coronado  Beach  was  a  part 
of  its  territory,  and  partially  acquired,  doubtless,  by  taxation  upon 
this  land.  All  of  this  property  it  retains.  All  of  the  moneys  evi- 
denced by  the  bonded  indebtedness  were  expended  within  its  present 
territorial  limits,  and  no  dollar  of  it  went  to  improve  the  excluded 
territory.  Having  all  of  the  common  property  and  all  of  the  fruits 
of  the  common  debt,  it  is  certainly  not  onerous  or  oppressive  that  it 


EEPEAL,   OF   CHARTER    AND   DISSOLUTION 


89 


should  be  asked  to  pay  for  what  has  been  expended  for  its  exclusive 
benefit.  In  a  certain  sense,  it  is  true  that  Coronado  Beach  was 
also  benefited  by  these  expenditures.  In  the  same  sense,  San  Mateo 
county  is  benefited  by  the  public  improvements  of  the  city  and  coun- 
ty of  San  Francisco ;  but  it  has  never  been  asserted  that  for  such 
benefits  a  sister  county  should  be  called  upon  to  pay.  The  judg- 
ment and  order  appealed  from  are  affirmed.® 


IV.  Repeal  of  Charter  and  Dissolution  *» 


PEPIN  V.  SAGE. 

(Circuit  Court  of  Appeals  of  the  United  States,  Eighth  Circuit,  1904.    129  Fed. 

657,  64  C.  C.  A.  169.) 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the  Dis- 
trict of  Minnesota. 

Before  Sanborn,  Thayer,  and  Van  Devanter,  Circuit  Judges. 

Van  Devanter,  Circuit  Judge.^^  This  is  an  appeal  from  a  de- 
cree charging  the  township  of  Pepin  and  the  city  of  Wabasha,  in  the 
state  of  Minnesota,  as  the  successors  of  the  late  village  of  Reads,  in 
that  state,  with  the  payment  of  bonds  issued  by  the  village  during 
its  corporate  existence,  and  apportioning  the  debt  between  the  suc- 
ceeding municipalities  in  the  proportion  that  the  taxable  value  of  the 
property  falling  within  each  by  reason  of  the  dissolution  of  the  vil- 
lage bears  to  the  taxable  value  of  the  entire  property  within  the  vil- 
lage at  the  time  of  its  dissolution.  The  facts  are,  briefly,  as  follows : 
The  village  of  Reads  was  created  by  a  special  act  approved  March 
5,  1868  (Sp.  Laws  1868,  p.  261,  c.  34),  out  of  territory  partly  within 
the  township  of  Pepin  and  partly  within  the  city  of  Wabasha.  The 
bonds  were  issued  by  that  village  under  authority  of  special  acts  ap- 
proved March  6,  1868  (Sp.  Laws  1868,  p.  39,  c.  16),  and  March  5, 
1869  (Sp.  Laws  1869,  p.  211,  c.  37),  by  the  first  of  which  it  is  pro- 
vided that  the  faith  of  the  village  "or  the  municipal  corporation  which 
may  succeed  it"  shall  be  pledged  for  the  payment  of  the  principal 
and  interest  of  the  bonds,  and  that  to  make  such  payment  taxes  shall 
be  levied  and  collected  upon  the  taxable  property  of  the  village  in 
the  same  manner  as  other  taxes  are  levied  and  collected  in  the  village 
"or   the  municipal   corporation   which   shall  succeed   it.'' 

Before  the  actual  issuance  of  the  bonds,  but  after  their  issuance  was 
authorized  by  statute  and  by  a  vote  of  the  electors  of  the  village,  a 

•  See,  also,  Rumsey  v.  Town  of  Siuik  Centre,  ante,  p.  ..'«. 

10  For  dl.scusslon  of  principles,  see  Cooley.  Mnn.  Corp.  {  36. 

11  Part  of  the  opinion  is  omitted. 


1)0  ALTERATION    AND    DISSOLUTION 

special  act,  approved  March  5,  1869,  again  placed  in  the  city  of  Wab- 
asha the  portion  of  the  village  which  had  been  taken  from  the  city 
when  the  village  was  created.  A  special  act  approved  January  29, 
1891  (Sp.  Laws  1891,  p.  551,  c.  51),  returned  to  the  village  the  ter- 
ritory originally  taken  from  the  city,  and  from  then  until  its  disso- 
lution the  village  covered  the  identical  territory  over  which  it  was 
first  erected.  The  charter  or  special  law  under  which  the  village  was 
created  was  repealed  and  the  village  dissolved  by  an  act  approved 
April  22,  1895  (Laws  1895,  p.  798,  c.  390),  and  taking  effect  Feb- 
ruary 6,  1896.  Acting  under  the  belief,  generally  shared  by  all,  that 
this  statute  did  not  dissolve  or  disorganize  the  village,  its  inhabitants 
continued  to  elect  officers,  and  through  them  to  transact  the  business 
of  the  village  and  to  govern  its  territory  and  people  as  theretofore 
until  in  1899,  when  in  proceedings  in  the  nature  of  quo  warranto 
prosecuted  by  the  state  a  judgnient  of  ouster  was  rendered  against 
the  village  and  those  acting  as  its  officers.  State  ex  rel.  v.  Village 
of  Reads,  76  Minn.  69,  78  N.  W.  883.     *     *     * 

The  present  suit  strongly  resembles  and  has  closely  followed  the 
one  shown  in  Mt.  Pleasant  v.  Beckwith,  100  U.  S.  514,  25  L.  Ed. 
699,  where  it  was  determined,  in  the  absence  of  constitutional  re- 
strictions: (1)  The  creation,  division,  and  dissolution  of  municipal 
corporations,  and  the  powers  to  be  exercised  by  them,  are  subject 
to  the  legislative  control  of  the  state  creating  them.  (2)  Where  one 
municipality  is  legislated  out  of  existence,  and  its  territory  is  annexed 
to  other  municipal  corporations,  it  belongs  wholly  to  the  Legislature 
to  apportion  between  them  the  debts  of  the  dissolved  municipality, 
and  to  determine  what  proportion  shall  be  borne  by  each ;  but  in  the 
absence  of  such  legislation  the  municipal  corporations  receiving  the 
territory  of  the  one  dissolved  will  be  severally  liable  for  its  then  sub- 
sisting legal  debts  in  the  proportion  that  the  taxable  property  within 
it  falls  within  them  respectively,  and  the  power  of  taxation  to  be 
exercised  to  pay  such  debts  will  extend  to  all  the  taxable  property 
within  their  respective  jurisdictions,  and  will  not  be  restricted  to  the 
property  and  persons  within  the  territory  annexed.  Other  cases  of 
similar  import  are  Broughton  v.  Pensacola,  93  U.  S.  266,  23  L.  Ed. 
896;  Meriwether  v.  Garrett,  102  U.  S.  472,  26  L.  Ed.  197;  Mobile 
v.  Watson,  116  U.  S.  289,  6  Sup.  Ct.  398,  29  L.  Ed.  620;  United 
States  ex  rel.  v.  Port  of  Mobile  (C.  C.)  12  Fed.  768;  Brewis  v.  Du- 
luth  (C.  C.)  13  Fed.  334;   Laird  v.  De  Soto  (C.  C.)  22  Fed.  421. 

The  principles  announced  and  applied  in  Mt.  Pleasant  v.  Beckwith 
are  in  full  accord  with  the  decisions  of  the  Supreme  Court  of  the 
state  of  Minnesota,  so  far  as  that  court  has  spoken  upon  the  subject. 
State  V.  City  of  Lake  City,  25  Minn.  404,  414;  City  of  Winona  v. 
School  District,  40  Minn.  13,  16,  41  N.  W.  539,  3  L.  R.  A.  46,  12  Am. 
St,  Rep.  687.  Counsel  for  appellants  practically  concede  that  the  law 
is  as  just  stated,  and  they  rely  upon  certain  provisions  of  the  Con- 


REPEAL   OF   CHARTEK   AND   DISSOLUTION  91 

stitution  and  statutes  of  Minnesota  as  controlling  in  the  present  case. 
Their  first  contention  is  that  the  territory  within  the  village  of  Reads 
did  not,  upon  its  dissolution,  fall  within  or  become  part  of  the  town- 
ship of  Pepin  and  the  city  of  Wabasha,  and  therefore  the  township 
and  city  are  not  the  successors  of  the  village,  and  are  not  charged 
with  the  payment  of  its  debts.  To  support  the  contention  they  cite 
sections  33  and  34,  ingrafted  upon  article  4  of  the  state  Constitution 
by  way  of  amendment  in  November,  1892,  and  section  258,  Gen.  St. 
1894.     So  far  as  material,  these  are  as  follows: 

"Sec.  33.  In  all  cases  when  a  general  law  can  be  made  applicable 
no  special  law  shall  be  enacted ;  and  whether  a  general  law  could  have 
been  made  applicable  in  any  case  is  hereby  declared  a  judicial  ques- 
tion, and  as  such  shall  be  judicially  determined  without  regard  to 
any  legislative  assertion  on  that  subject.  The  Legislature  shall  pass 
no  local  or  special  law  regulating  the  affairs  of,  or  incorporating,  erect- 
ing or  changing  the  lines  of  any  county,  city,  village,  township,  ward 
or  school  district.  *  *  *  Provided,  however,  that  the  inhibition 
of  local  or  special  laws  in  this  section  shall  not  be  construed  to  pre- 
vent the  passage  of  general  laws  on  any  of  the  subjects  enumerated. 
The  Legislature  may  repeal  any  existing  special  or  local  law,  but  shall 
not  amend,  extend  or  modify  any  of  the  same. 

"Sec.  34.  The  Legislature  shall  provide  general  laws  for  the  trans- 
action of  any  business  that  may  be  prohibited  by  section  one  of  this 
amendment  [Sec.  33],  and  all  such  laws  shall  be  uniform  in  their 
operation  throughout  the  state." 

"Sec.  258.  Whenever  a  law  is  repealed  which  repealed  a  former  law, 
the  former  law  shall  not  thereby  be  revived,  unless  it  is  so  specially 
provided." 

We  think  these  provisions  are  not  applicable  to  the  act  dissolving 
the  village.  Originally  the  township  and  city  included  the  territory 
in  question,  and  the  special  acts  which  placed  it  within  the  village 
contain  no  reference  whatever  to  the  township  or  city,  or  to  their 
boundary  lines,  or  to  the  statutes  defining  them.  The  statutes  cre- 
ating the  township  and  the  city  were  not  at  any  time  repealed,  but 
were  left  in  force.  The  township  and  the  city  were  not  at  any  time 
extinguished,  but  remained  in  existence  under  the  operation  of  those 
statutes.  The  effect  of  the  special  acts  creating  the  village  and  de- 
fining its  boundaries  was  to  except  the  territory  covered  by  it  from 
the  township  and  the  city  and  from  the  ojK-ration  of  the  statutes  cre- 
ating them.  Suljjcct  to  that  exception,  the  legislative  will,  as  at  all 
times  registered  and  expressed  in  li\ing,  operative,  and  valid  stat- 
utes— not  enactments  entirely  repealed,  either  expressly  or  by  impli- 
cation— placed  this  territory  in  the  township  and  city.  When  the 
special  acts  which  by  implication  put  that  exception  upon  these  stat- 
utes were  repealed,  the  exception  was  at  an  end.  These  statutes  and 
their  definition  of  the  boundaries  of  the  township  and  city  were  then 


92  ALTERATION   AND    DISSOLUTION 

operative  as  if  there  had  been  no  exception.  They  did  not  need  to 
be  revived  because  they  had  not  been  repealed.  Nor  was  any  amend- 
ment, extension,  or  modification  of  them  necessary  to  give  them  ef- 
fective operation  over  the  territory  of  the  extinguished  village.  While 
carefully  prohibiting  the  passage  of  local  or  special  laws,  including 
those  changing  the  boundary  lines  of  any  city,  village,  or  township, 
the  amendment  to  the  Constitution  expressly  permits  the  repeal  of 
existing  laws  of  that  character,  and  impliedly,  but  not  less  certainly, 
permits  the  repeal  to  have  the  usual  or  ordinary  effect  of  such  a 
statute.  This  repealing  act  is  confined  to  a  direct  annulment  of  the 
charter  or  special  law  creating  the  village  and  makes  no  attempt  at 
any  affirmative  legislation  or  to  give  to  the  repeal  any  other  than  the 
usual  or  ordinary  effect. 

In  respect  of  the  constitutional  provisions  cited,  our  opinion  may 
be  stated  in  this  manner :  The  express  authority  for  the  repeal  of 
"any  existing  special  or  local  law"  is  a  limitation  upon  the  inhibition 
against  the  passage  of  special  or  local  laws,  and  withdraws  such  re- 
pealing acts  from  the  operation  of  that  inhibition.  The  act  repealing 
the  charter  or  law  creating  the  village  of  Reads  is  within  the  express 
authorization,  and  is  to  be  given  the  usual  or  ordinary  legal  effect  of 
such  an  act.  The  changes  wrought  in  existing  conditions  by  giving 
this  effect  to  an  authorized  repealing  act  are  also  within  the  express 
authorization,  and  not  within  the  inhibition.  Upon  the  dissolution 
of  the  village  the  territory  embraced  therein  became  part  of  the  town- 
ship of  Pepin  and  the  city  of  Wabasha,  not  because  the  repealing  act 
changed  the  boundary  lines  of  the  township  or  city,  but  because  it 
released  that  territory  from  the  excepting  effect  of  the  charter  or 
law  creating  the  village;  and  when  this  was  done  that  territory  came 
within  the  boundaries  of  the  township  and  city  as  theretofore  law- 
fully defined,  by  valid  statutes  still  subsisting,  and  therefore  became 
part  of  the  township  and  city,  and  was  brought  within  their  jurisdic- 
tion. In  other  words,  while  this  territory  was  released  from  the  ef- 
fect of  the  village  charter  by  the  repealing  act,  it  resumed  its  place 
m  the  township  and  city  by  reason  of  the  statutes  creating  them  and 
defining  their  boundaries.  Of  course,  this  result  would  not  have  fol- 
lowed if  these  statutes  had  been  repealed  in  the  meantime,  or  if  the 
act  repealing  the  village  charter  had  provided — if  it  could  do  so  with- 
out violating  the  inhibition  against  special  or  local  laws — that  the 
territory  and  inhabitants  within  the  limits  and  jurisdiction  of  the  vil- 
lage should  be  resolved  into  the  body  of  the  state,  and  be  subjected 
to  its  immediate  control.     *     *     * 

We  are  of  opinion  that  the  territory  of  the  village,  upon  its  disso- 
lution, fell  within  the  township  and  city,  and  made  them  the  succes- 
sors of  the  village.  But  it  is  urged  upon  us  that  this  results  in  trans- 
ferring the  debts  of  one  community  to  other  communities  which  had 
no  voice  in  the  creation  of  the  debts  or  in  their  transfer.    In  one  sense 


REINCORPORATION  93 

that  is  true,  but  the  result  of  a  ruling  to  the  contrary  would  be  dis- 
tressing to  contemplate.  It  would  amount  to  a  declaration  that  the 
state  extinguished  one  of  its  municipalities  under  circumstances  which 
make  proceedings  for  the  collection  and  payment  of  the  municipal 
debts  impossible.  A  result  which  imputes  to  a  state  such  an  indif- 
ference to  the  claims  of  justice  and  to  the  lawful  engagements  of  the 
municipalities  under  its  control  is  not  permissible  where  another  is 
possible  under  the  law.  The  circumstances  of  this  case  do  not  per- 
mit such  an  imputation.  The  answer  to  the  present  insistence  is 
given  in  Mt.  Pleasant  v.  Beck  with,  supra,  where  the  court  said  (pages 
529,  531,  100  U.  S.,  25  L.  Ed.  699):  "But  in  all  these  cases,  if  the 
extinguished  municipality  owes  outstanding  debts,  it  will  be  presumed 
in  every  such  case  that  the  Legislature  intended  that  the  liabilities  as 
well  as  the  rights  of  property  of  the  corporation  which  thereby  ceases 
to  exist  shall  accompany  the  territory  and  property  into  the  jurisdic- 
tion to  which  the  territory  is  annexed.     *     *     * "     Affirmed. 


V.  Reincorporation  ^'' 


BROADFOOT  v.  CITY  OF  FAYETTEVILLE. 

(Supreme  Court  of  North  Carolina,  1899.    124  N.  C.  478,  32  S.  E.  804,  70  Am. 

St.  Rep.  610.) 

Action  by  C.  W.  Broadfoot  against  the  city  of  Fayetteville  on  cou- 
pons issued  by  the  town  of  Fayetteville.  From  judgment  for  plaintiff, 
defendant  appeals. 

MoNTGO.MJCRY,  J.^^  Under  the  provisions  of  an  act  of  the  general 
assembly  of  the  session  of  1881,  the  charter  of  the  town  of  Fayette- 
ville was  surrendered  and  repealed.  At  its  session  in  1883,  the  gen- 
eral assembly  created  a  taxing  and  police  district  out  of  the  terri- 
tory included  in  the  boundaries  of  the  old  town  of  Fayetteville,  the 
taxing  and  police  district  to  be  called  "Fayetteville."  Under  the  last- 
mentioned  act,  all  of  the  property  of  the  former  town  of  Fayetteville 
was  transferred  to  the  custody  and  control  of  the  board  of  commis- 
sioners appointed  by  the  general  asscml)ly.  The  public  buildings, 
streets,  and  squares,  and  the  policing  of  the  same,  were  placed  under 
the  charge  of  those  commissioners.  Taxes  were  levied  by  the  gen- 
eral assembly,  with  a  specification  as  to  the  purposes  to  which  they 
were  to  be  applied.  The  general  assembly  at  its  session  of  1893  in- 
corporated the  inhabitants  within  the  old  territory  of  the  town  of 
Fayetteville  under  the  name  of  the  "City  of  Fayetteville."    The  plain- 

12  For  (llsciisslnn  of  jirinflples,  see  Cooley,  Mun.  Corp.  §  37. 

13  I'art  of  the  opinion  is  omitted. 


1)^  ALTERATION    AND    DISSOLUTION 

tiff  in  1880  and  1881,  being  the  owner  of  52  coupons  cut  from  bonds 
executed  by  the  town  of  Fayetteville,  presented  the  same  for  payment ; 
and,  upon  payment  being  refused,  brought  two  actions  against  the 
town  of  Fayetteville  to  recover  the  amounts  due  on  the  coupons. 
Judgments  were  rendered  at  August  term,  1882,  of  Cumberland  su- 
perior court  in  the  two  actions  in  favor  of  the  plaintiff;  but,  between 
the  time  of  action  begun  and  judgment  rendered,  the  charter  of  the 
then  defendant,  the  town  of  Fayetteville,  was  surrendered  and  re- 
pealed.    *     *     * 

The  defendant  admits  the  repeal  of  the  charter  of  the  town  of 
Fayetteville,  that  the  coupons  have  never  been  paid,  that  the  judg- 
ments were  entered  against  the  town  of  Fayetteville  after  its  char- 
ter had  been  surrendered,  and  that  the  inhabitants  of  the  old  town  have 
been  incorporated  by  the  act  of  1893  under  the  name  of  the  "City  of 
Fayetteville."  The  defendant  avers,  however,  that  the  judgments  pro- 
cured by  the  plaintiff  against  the  town  of  Fayetteville  were  void,  and 
denies  that  the  city  of  Fayetteville  is  the  successor  of  the  old  town 
of  Fayetteville,  or  liable  on  the  coupons  or  on  the  judgments. 

It  is  of  the  first  importance,  then,  to  consider  whether  the  city  of 
Fayetteville,  the  new  corporation,  chartered  by  the  act  of  March, 
1893,  is  so  far  the  successor  of  the  town  of  Fayetteville,  the  old  cor- 
poration, as  to  be  liable  for  its  debts.  If  this  question  is  answered 
in  the  affirmative,  the  statutes  of  limitation  set  up  in  the  answer  as 
a  defense  to  the  action  will  then  have  to  be  discussed  and  decided. 
This  court  at  one  time  adopted  the  old  common-law  rule  that,  upon 
the  civil  death  of  a  corporation,  the  grantors  of  its  real  estate  took  it 
by  reversion,  and  the  debts  due  to  and  from  it  were  extinguished. 
Fox  V.  Horah,  36  N.  C.  358,  36  Am.  Dec.  48.  This  rule  was  changed 
by  the  court  in  the  case  of  Wilson  v.  Leary,  120  N.  C.  90,  26  S.  E. 
630,  38  L.  R.  A.  240,  58  Am.  St.  Rep.  778,  and  that  of  Fox  v.  Horah, 
supra,  was  overruled.  The  debt,  then,  due  to  the  plaintiff  by  the  town 
of  Fayetteville  was  not  extinguished  by  the  repeal  of  its  charter, 
and  still  exists,  notwithstanding  that  repeal.  Meriwether  v.  Garrett, 
102  U.  S.  472,  26  L.  Ed.  197;  Wolff  v.  New  Orleans,  103  U.  S.  358, 
26  L.  Ed.  395;  Mobile  v.  U.  S.,  116  U.  S.  289,  6  Sup.  Ct.  398,  29 
L.  Ed.  620 ;    O'Connor  v.  City  of  Memphis,  6  Lea  (Tenn.)  730. 

Apparently,  each  corporation  created  by  a  separate  charter  is  a  dis- 
tinct entity,  and  from  this  it  may  be  argued  with  plausibility  that  no 
two  successive  corporations  can  be  connected,  unless  they  are  con- 
nected by  the  terms  of  the  act  which  created  them.  But  that  view 
must  be  often  only  apparently  true.  If,  in  the  case  of  a  municipal 
corporation,  the  old  charter  should  be  repealed  and  a  new  one  granted, 
and  the  new  one  should  include  the  same  territory,  substantiallj^  the 
same  people,  and  the  great  mass  of  the  taxable  property  of  the  old 
corporation,  and  the  property  of  the  old  corporation  used  for  pub- 
lic  purposes   be   passed  over   to   the   possession   and   control    of   the 


EEINCORPORATION  95 

new  corporation,  without  consideration  from  the  new  corporation, 
it  would  be  difficult  to  appreciate  how  the  property  and  the  benefits 
of  the  old  corporation  could  be  received  by  the  new  one,  without  the 
shouldering  of  its  responsibility  by  the  new  one.  It  must  be  that  the 
creditors  of  a  defunct  municipal  corporation,  whose  money  and  prop- 
erty have  helped  to  build  up  and  improve  the  wealth  and  influence 
of  the  old  corporation  (although  they  must  submit  when  a  charter  is 
absolutely  abolished,  and  while  the  old  territory  and  people  remain 
unincorporated),  have  the  right  in  equity  to  have  a  new  corporation, 
embracing  the  same  territory,  and  the  same  inhabitants  and  the  same 
taxable  property,  considered  as  the  successor  of  the  old,  at  least  so 
far  as  its  liabilities  for  the  debts  of  the  old  corporation  are  concerned. 
When  the  old  charter  is  repealed,  and  a  new  one  is  granted,  upon 
which  latter  are  bestowed  by  law  all  the  benefits  and  property  of  the 
old,  the  burden  of  the  old  must  be  borne  by  the  new.  Where  the 
benefits  are  taken,  the  burdens  are  assumed.  So  strong  has  this  view 
been  impressed  upon  the  courts  that  in  O'Connor  v.  City  of  Memphis, 
supra,  the  court  said :  "But  in  no  case  have  the  courts  ever  failed 
to  declare  the  identity  or  succession  or  continuity  of  the  two  corpo- 
rations, where  the  same  corporators  and  the  same  corporate  property 
have  passed  to  the  new  corporation.  The  terms  of  the  charter  have 
in  such  cases  never  been  construed  otherwise."  The  same  doctrine 
was  laid  down  in  Mt.  Pleasant  v.  Beckwith,  100  U.  S.  514,  25  L.  Ed. 
699,  in  B  rough  ton  v.  Pensacola,  93  U.  S.  266,  23  L.  Ed.  896,  in  Wolff 
V.  Nevv  Orleans,  and  in  Mobile  v.  U.  S.,  supra. 

The  acts  of  the  legislature  repealing  the  old  charters  of  the  cities 
of  Memphis  and  Mobile,  and  reincorporating  those  cities,  were  passed 
on  the  same  day;  and  it  might  be  inferred  that  these  acts  were  con- 
sidered as  one  and  the  same  in  legislative  intent.  •  But  in  the  case  of 
Amy  V.  Selma,  77  Ala.  103,  cited,  indorsed,  and  approved  with  high 
commendation  by  the  supreme  court  of  the  United  States  in  Mobile 
V.  U.  S.,  supra,  the  acts  were  not  simultaneously  passed.  The  repeal- 
ing act  was  passed  in  December,  1882,  and  the  reincorporating  act  in 
February,  1883.  In  that  case  the  supreme  court  of  Alabama  held  that 
the  act  repealing  the  charter  of  the  city  of  Selma  was  without  cfi'ect 
or  operation  upon  the  liabilities  of  the  city  of  Selma ;  that  the  act  of 
February,  incorporating  the  inhabitants  and  territory  formerly  em- 
braced within  the  limits  of  the  city  of  Selma,  was  a  reorganization  un- 
der the  corporate  name  of  Selma  of  the  same  corporators,  and  em- 
braced substantially  the  same  territory  as  the  city  of  Selma ;  that  Selma 
was  the  successor  of  the  city  of  Selma,  and  liable  for  the  payment  of 
its  debts.  *  *  *  j^  ti^c  case  before  us  12  years  elapsed  between 
the  repeal  of  the  charter  of  the  town  of  Fayetteville  and  the  incor- 
poration of  the  city  of  Fayetteville ;  but  we  cannot  see  how  that  can 
alter  the  principle  involved  in  the  case.  The  foundation  on  which  the 
liability  of  the  new  corporation  rests  is  that  the  new  corporation  cm- 


1)G  ALTERATION    AND    DISSOLUTION 

braces  the  same  territory,  the  same  corporators,  the  same  taxable  prop- 
erty, and  has  received  the  property  of  the  old  incorporation  without 
consideration ;  and  for  these  benefits  it  must,  in  return,  bear  the  bur- 
dens of  the  old  corporation.  The  liability  in  such  a  case  commences 
from  the  receiving  of  the  benefits,  and  whether  those  benefits  were 
received  one  or  ten  years,  or  more,  from  the  repeal  of  the  old  charter, 
makes  no  difference. 

But  it  is  argued  for  the  defendant  that,  even  if  the  act  of  1893  did 
have  the  effect  to  make  the  city  of  Fayetteville  the  successor  of  the 
old  town  of  Fayetteville,  yet  the  new  corporation  was  not  liable  for 
the  debts  of  the  old  corporation,  but,  on  the  other  hand,  was  ex- 
pressly prohibited  from  assuming  the  debts  of  the  old  town  or  from 
paying  any  part  of  them,  except  such  as  were  provided  for  in  the 
act  of  1883 ;  and  the  plaintiff  claimed  no  benefit  under  that  act.  The 
position  was  without  any  citation  of  authority  to  support  it,  and  to 
us  it  did  not  seem  to  be  sound;  and  the  authorities,  so  far  as  they 
have  been  examined  by  us,  are  all  the  other  way.  If  the  law  was  as 
is  contended  for  by  the  defendant,  then  it  would  be  in  the  power  of 
the  legislature  to  destroy  the  claims  of  creditors  against  municipal 
corporations  by  simply  repealing  their  charters  on  one  day,  and  on 
the  next  reincorporating  the  same  inhabitants  in  the  same  territory, 
taking  care  to  insert  in  the  repealing  acts  a  provision  to  the  effect 
that  the  new  corporation  should  not  be  liable  for  the  debts  of  the  old. 
Such  legislation  would  be  contrary  to  every  idea  of  justice  and  law, 
and  obnoxious  to  the  constitution  of  the  United  States,  and  to  that 
of  our  own  state.  In  Amy  v.  Selma,  supra,  it  appeared  that  the  act 
incorporating  Selma  authorized  the  proper  officials  to  levy  taxes,  but 
declared  that  no  funds  derived  by  the  corporation  from  the  collec- 
tion of  taxes  or  from  any  other  source  should  be  used  for  the  pay- 
ment of  any  of  the  debts  of  the  city  of  Selma,  the  old  corporation ;  and, 
as  we  have  seen,  the  supreme  court  of  Alabama  in  that  case  held  that 
the  provision  was  inoperative  against  the  debts  and  liabilities  of  the 
city  of  Selma,  and  the  supreme  court  of  the  United  States  in  Mobile 
v.  U.  S.,  supra,  cited  the  decision  with  marked  approval.  *  *  * 
Affirmed.^* 

14  As  to  effect  of  reincorporation,  see,  also,  City  of  Guthrie  v.  Territory, 
ante,  ij.  52,  aud  Sliapleigli  v.  City  of  Sau  Aiigelo,  post,  p.  319. 


THE   CHARTEB  97 


THE  CHARTER 

I.  Municipal  Powers — Inherent — Express — Implied  * 

1.  In  General 


McALLEN  V.  HAMBLIN. 

(Supreme  Court  of  Iowa,  1906.    129  Iowa,  329,  105  N.  W.  593,  5  L.  R.  A.  [N. 

S.]  434,  6  Ann.  Cas.  980.) 

Suit  in  equity  to  enjoin  defendants  who  are  the  mayor,  clerk,  and 
aldermen  of  the  town  of  Walker,  from  paying  out  or  using  any  of  the 
general  funds  of  said  town  for  the  use  of  a  team  and  driver  in  sprin- 
kling the  streets  of  said  town,  and  from  using  water  from  the  town 
waterworks  system  for  street  sprinkling.  Defendants'  general  eq- 
uitable demurrer  to  the  petition  was  overruled,  and  a  decree  was  en- 
tered as  prayed.    Defendants  appeal. 

Deemer,  J.  By  statute  cities  and  towns  have  power  to  improve 
and  repair  streets,  have  the  care  and  supervision  thereof,  and  are  ob- 
ligated to  keep  them  open,  in  repair,  and  free  from  nuisance.  Code, 
§§  751,  753.  The  expenses  connected  therewith  may  be  paid  out  of 
the  general  fund,  or  in  some  cases  they  may  assess  the  cost  thereof 
against  abutting  property.  Code,  §  779.  They  may  contract  and  pay 
for  water  necessary  for  public  purposes.  Code,  §  725.  It  appears 
from  the  allegations  of  the  petition  that  the  town  of  Walker  owns  and 
operates  its  system  of  waterworks ;  that  certain  citizens  by  private 
subscription  purchased  a  street  sprinkler,  and  donated  the  same  to  the 
use  of  the  town  ;  and  that  defendants,  as  the  governing  body  of  the 
municij)ality,  hired  a  driver  and  team  for  the  sprinkler,  in  order  that 
the  business  streets  of  the  village  miglit  be  sprinkled.  Defendants 
aLso  allowed  water  to  be  taken  from  the  system  of  waterworks  belong- 
ing to  the  town  for  street  sprinkling  purposes,  without  charge  there- 
for, and  when  this  action  was  commenced  were  paying  the  driver  and 
for  the  use  of  the  team  out  of  the  general  funds  of  the  town.  There 
was  no  ordinance  or  resolution  providing  for  payments  to  the  driver 
or  for  the  use  of  the  team.  The  action  is  bottomed  on  the  theory  that 
the  defendants  had  no  right  to  use  the  general  funds  of  the  town  for 
paying  the  clrivcr  or  for  the  use  of  the  team,  and  that  their  action  in 
permitting  the  water  to  be  used  for  street  sprinkling  was  and  is  un- 
lawful. 

1  For  (llsni.Hslon  of  jniii(ii)l<'.s,  see  Cooley,  Muu.  Corp.  §  40. 
CooLEY  Cases  Mun.C. — 7 


98  THE   CHARTER 

Defendants  contend  that  their  action  in  the  premises  was  for  the 
improvement  and  care  of  the  village  streets,  and  that  they  had  au- 
thority under  the  law  to  do  as  they  did.  But  appellees  say  that  the 
Legislature  has  not  granted  to  towns  the  right  and  power  to  sprinkle 
streets,  and  to  pay  therefor  out  of  the  general  revenues  of  the  town. 
It  is  true,  of  course,  that  a  municipality  can  exercise  such  powers,  and 
such  only,  as  are  granted  in  express  words,  or  such  as  are  fairly  and 
reasonably  implied  or  incident  to  those  granted,  or  such  as.  are  essen- 
tial to  the  declared  objects  and  purposes  of  the  corporation,  or  as  said 
in  Heins  v.  Lincoln,  102  Iowa.  77,  71  N.  W.  189:  "Municipal  corpo- 
rations possess,  and  can  exercise  only  the  following  powers :  First, 
those  granted  in  express  words;  second,  those  necessarily  or  fairly 
implied  or  incident  to  the  powers  expressly  granted;  third,  those  es- 
sential to  the  declared  objects  and  purposes  of  the  corporation — not 
simply  convenient,  but  indispensable."  See,  also,  Aldrich  v.  Paine, 
106  Iowa,  461,  76  N.  W.  812. 

We  have  referred  to  the  statutes  which  confer  upon  town  councils 
authority  over  streets,  and  find  that  they  may  improve  and  repair 
them,  that  they  have  the  care  and  supervision  thereof,  and  must  keep 
the  same  open,  in  repair,  and  free  from  nuisances.  They  may  also 
contract  for  a  water  supply  for  public  purposes.  They  are  not  given 
express  power  to  sprinkle  streets,  unless  that  be  involved  or  implied 
in  the  grant  of  authority  to  improve,  care  for,  supervise,  and  control 
the  same.  Water  for  street  sprinkling  is  undoubtedly  a  public  purpose 
within  the  meaning  of  the  statute  referred  to,  for  the  benefit  is  to 
others  aside  from  those  whose  property  directly  abuts  upon  the  street 
which  is  sprinkled.  We  are  constrained  to  hold,  that  under  the  stat- 
utes referred  to,  towns  have  authority  to  pay  for  the  sprinkling  of 
streets.  Such  work  is  an  improvement  of  the  streets,  in  that  it  re- 
moves sources  of  filth,  destroys  or  confines  germs  of  disease,  and  con- 
duces to  the  comfort,  not  only  of  the  traveling  public,  but  to  all  who 
may  own  property  in  the  vicinity  of  the  street.  It  makes  it  easier  to 
travel  over  the  highways,  and  removes  many  of  the  discomforts  at- 
tendant upon  the  use  of  dirt  roads  in  dry  weather.  True,  the  results 
are  transient,  and  not  permanent ;  but  this  is  true  of  almost  any  im- 
provement. None  of  them  are  everlasting  or  eternal.  A  board  side- 
walk soon  rots  out,  and  a  pavement  wears  away  from  use  or  the  ac- 
tion of  the  elements.  Permanency,  or  the  want  of  it,  is  not  the  true 
test,  but  rather  the  result  to  be  obtained.  That  a  street  is  improved 
by  the  use  of  water  upon  it  to  settle  and  allay  the  dust  is  too  clear 
for  argument.  This  being  true,  the  acts  complained  of  were  within 
the  implied,  if  not  the  express  power,  conferred  upon  the  defendants. 
That  street  sprinkling  is  a  public,  rather  than  a  private,  improvement, 
is  also  too  clear  for  discussion.  See,  as  sustaining  these  propositions. 
State  V.  Reis,  38  ^linn.  371,  38  N.  W.  97;  Savage  v.  City,  23  Or. 
381,  31  Pac.  832,  24  L.  R.  A.  787,  37  Am.  St.  Rep.  688;  West  v.  Ban- 
croft, 32  Vt.  371 ;   Sears  v.  Board,  173  Mass.  71,  ':>Z  N.  E.  138,  43  L. 


MUNICIPAL   POWERS — INHERENT — EXPRESS — IMPLIED  99 

R.  A.  834;  Reinken  v.  Fuehring,  130  Ind.  382,  30  N.  E.  414,  15  L. 
R.  A.  624,  30  Am.  St.  Rep.  247. 

Street  sprinkling  is  as  necessary  as  street  cleaning,  and  no  one 
would  contend,  we  think,  that  a  town  or  city  may  not  employ  and  pay 
men  for  cleaning  its  streets  and  crossings.  There  is  no  requirement 
that  the  matter  be  covered  by  ordinance  or  resolution.  The  work  is 
not  of  such  a  nature  as  to  require  such  formalities.  The  demurrer 
should  have  been  sustained,  and  a  judgment  entered  dismissing  plain- 
tiffs' petition. 

The  decree  must  be  reversed,  and  the  cause  remanded  for  one  in 
harmony  with  this  opinion.    Reversed  and  remanded. 


GREEN  et  al.  v.  CITY  OF  CAPE  MAY. 
(Supreme  Court  of  New  Jersey,  1879.    41  N.  J.  Law,  45.) 

This  action  was  brought  by  Green  &  Piatt,  partners,  to  recover  from 
the  city  of  Cape  May  the  price  of  a  Babcock  steam  fire  engine  and 
ten  fire  extinguishers,  alleged  to  have  been  sold  by  the  plaintiffs  to  the 
defendants.  A  verdict  was  rendered  for  the  plaintiffs.  A  rule  to 
show  cause  why  a  new  trial  should  not  be  granted  was  allowed  by  the 
trial  judge. 

Ref.d,  J.-  The  main  contention  by  the  counsel  of  the  defend- 
ants is,  that  there  was  no  power  in  the  defendants,  the  city  of  Cape 
May,  to  make  a  contract  for  the  purchase  of  a  steam  fire  engine  and 
extinguishers.  If  this  is  so,  the  contract  in  question  is  ultra  vires  and 
invalid.  In  turning  to  the  charter  of  the  defendants  (P.  L.  1851,  p. 
112),  we  find  in  sections  13  and  18  the  source  of  whatever  power  the 
defendants  possess  relative  to  contracts  like  the  one  under  considera- 
tion. In  section  13,  among  the  powers  conferred  upon  the  city  coun- 
cil is  the  authority  to  pass  ordinances  for  the  prevention  and  suppres- 
sion of  fires,  and  to  appoint  and  remove  fire  warden.s,  and,  by  ordi- 
nance, to  prescribe  the  power  and  duty  of  such  fire  wardens,  and  of 
the  fire  engineers  and  firemen.  The  clause  in  section  18  confers  the 
right  to  raise  money  by  taxation  for  supporting  the  fire  engine  de- 
partment. There  is  nowhere  a  specific  grant  of  power  to  purchase 
engines  and  apparatus.  The  contention,  therefore,  is  that  such  i)owcr 
does  not  exist.  I5ut  tliis  contention  is  not  tenable.  The  rule  that  an 
express  grant  of  power  carries  with  it  a  grant  of  those  powers  neces- 
sarily or  fairly  implied  in  or  incident  to  the  power  expressly  granted, 
is  indisi)utablc.     1  Dill.  Mun.  Corp.  §  55. 

The  power  to  suppress  fires,  etc.,  would  be  nugatory  without  the 
I)ower  to  obtain  the  means  by  which  the  suppression  can  be  effected. 
The  authority  to  prescribe  the  power  and  duties  of  firemen  and  fire 
engineers  imi)lies  that  there  shall  be  apparatus,  in  the  management  of 

2  I'art  of  the  opiiiiuu  i.s  oiuitted. 


100  THE   CHARTER 

which  duties  shall  arise  and  hecome  the  subject  of  municipal  regula- 
tion. The  power  to  organize  a  fire  department  unaccompanied  with 
the  power  to  equip  the  department  with  apparatus,  would  be  as  futile 
as  the  privilege  of  raising  an  army  without  the  power  to  provide 
weapons  or  subsistence.  The  power  to  do  either  would  imply  the 
power  to  eiifectuate  the  intent  involved  in  the  grant  by  the  execution 
of  its  incidents. 

The  contracts  for  the  purchase  of  apparatus  are  clearly  among  the 
incidents  of  the  grant.  The  power  to  purchase  fire  engines,  has  been, 
in  several  states,  sustained  under  the  authority  of  the  city  to  make 
police  regulations  for  public  safety,  which,  it  is  held,  confers  the  power 
to  take  measures  for  the  prevention  of  fires.  Whether  the  power  to 
suppress  fires  arises  from  the  general  safety  clause  of  the  charter,  or 
from  express  grant,  it  carries  with  it  the  right  to  purchase  fire  en- 
gines. 1  Dill.  Mun.  Corp.  §  94.  I  therefore  think  the  power  to  pur- 
chase the  engine  and  extinguishers  was  in  the  defendants. 
The  rule  to  show  cause  is  discharged,  with  costs. 


* 


2.  GSNERAi.  Welfare:  Clause 


CITY  OF  CRAWFORDSVILLE  v.  BRADEN. 

(Supreme  Court  of  Indiana,  1891.     130  Ind.  149,  28  N.  E.  849,  14  L.  R.  A.  268, 

30  Am.  St.  Rep.  214.) 

Bill  by  Hector  S.  Braden  to  enjoin  the  city  of  Crawfordsville  from 
supplying  private  citizens  with  electric  light.  From  a  decree  overrul- 
ing defendant's  demurrer,  and  allowing  a  perpetual  injunction,  defend- 
ant appeals. 

McBridE,  J.^  The  question  we  are  required  to  decide  in  this 
case  is,  has  a  municipal  corporation  in  this  state  the  power  to  erect, 
maintain,  and  operate  the  necessary  buildings,  machinery,  and  appli- 
ances to  light  its  streets,  alleys,  and  other  public  places  with  the  elec- 
tric light,  and  at  the  same  time,  and  in  connection  therewith,  to  supply 
electricity  to  its  inhabitants  for  the  lighting  of  their  residences  and 
places  of  business.  Some  other  questions  are  incidentally  involved, 
but  the  principal  controversy  is  as  above  stated.  That  a  city  or  an 
incorporated  town  may  buy  and  operate  the  necessary  plant  and 
machinery  to  light  its  streets,  alleys,  and  other  public  places  is  not 
controverted  by  the  appellee;  but  he  denies  the  right  to  furnish  the 
light  to  the  individual  for  his  private  use. 

The  question  is  argued  on  the  theory  that,  if  the  city  has  such  pow- 
er, it  must  be  by  virtue  of  some  express  legislative  grant,  and  is  not 

3  Part  of  the  opinion  is  omitted. 


MUNICIPAL   POWERS — INHERENT — EXPRESS — IMPLIED  101 

among  the  implied  powers  possessed  by  municipal  corporations ;  that 
statutes  conferring  powers  upon  municipal  corporations,  especially 
those  involving  the  exercise  of  the  taxing  power,  must  be  strictly  con- 
strued;  and  that,  strictly  construed,  no  statute  confers  the  necessary 
authority.  The  purchase  of  the  necessary  land,  machinery,  and  ma- 
terial, and  the  erection  and  maintenance  of  such  a  plant,  does  involve 
the  exercise  of  the  taxing  power.  The  necessary  funds  must  be  sup- 
plied by  taxing  the  tax-payers  of  the  municipality.  The  only  statute 
bearing  directly  upon  this  question  is  the  act  of  March  3,  1883  (El- 
liott's Supp.  §  794  et  seq.).  Section  794  contains  the  following :  "That 
the  common  council  of  any  city  in  this  state,  incorporated  either  under 
the  general  act  for  the  incorporation  of  cities,  or  under  a  special  char- 
ter, and  the  board  of  trustees  of  all  incorporated  towns  in  this  state, 
shall  have  the  power  to  light  the  streets,  alleys,  and  other  public  places 
of  such  city  and  town  w^ith  the  electric  light  and^other  form  of  light, 
and  to  contract  with  any  individual  or  corporation  for  lighting  such 
streets,  alleys,  and  other  public  places  with  the  electric  light  or  other 
forms  of  light,  on  such  terms,  and  for  such  times,  not  exceeding  10 
years,  as  may  be  agreed  upon."  Section  795  provides  that,  for  the 
purpose  of  efifecting  such  lighting,  the  common  council  of  a  city  or 
board  of  trustees  of  a  town  may  provide,  by  resolution  or  ordinance, 
for  the  erection  and  maintenance  in  the  streets,  etc.,  of  the  necessary 
poles  and  appliances.  Section  796  authorizes  granting  to  any  person 
or  corporation  the  right  to  erect  and  maintain  in  the  streets,  etc.,  the 
necessary  poles  and  appliances  for  the  purpose  of  supplying  the  elec- 
tric or  other  light  to  the  inhabitants  of  the  corporation.  Section  797 
validates  contracts  of  a  certain  character,  made  before  the  enact- 
ment of  the  statute ;  and  section  798  provides  for  the  appropriation  of 
lands  and  right  of  way  by  corporations  engaged  in  the  business  of 
lighting  cities  or  towns,"  or  the  public  and  private  places  of  their 
inhabitants,  with  the  electric  light,"  etc. 

It  will  be  observed  that,  while  section  796  provides  for  granting  to 
third  persons  the  right  to  furnish  the  light  to  the  inhabitants,  it  does 
not,  in  terms,  give  any  such  power  to  the  corporation.  It  will,  there- 
fore, be  necessary  for  us  to  inquire  if  the  corporation  possesses  such 
power  independently  of  the  statute,  or,  if  not,  if  the  statute  is  sus- 
ceptible of  a  fair  construction,  in  accordance  with  established  rules, 
which  clothes  the  corporation  with  such  power.  In  the  case  of  Cas 
Co.  v.  City  of  Rushville,  121  Ind.  206,  23  N.  E.  72,  6  L.  R.  A.  315,  16 
Am.  St.  Rep.  388,  this  statute  was  considered,  in  so  far  as  relates  to 
the  right  of  the  city  to  buy  and  operate  the  necessary  pl.mt  ainl  ma- 
chinery to  light  its  streets,  alleys,  and  other  public  i^laces,  and  it  was 
held  that  the  statute  was  sufficient  to  confer  that  power.  In  that 
case  the  court,  after  announcing  the  conclusion  above  stated,  used  the 
following  language:  "If  there  were  any  doubt  as  to  the  meaning  of 
the  act,  it  would  be  removed  by  considering  it,  as  it  is  our  duty  to  do, 
in  connection  with  the  general  act  for  the  incorporation  of  cities;  for 


102  THE   CHARTER 

that  act  confers  very  comprehensive  powers  upon  municipal  corpora- 
tions as  respects  streets  and  public  works,  and  contains  many  broad 
general  clauses  akin  to  those  which  Judge  Dillon  designates  as  'gen- 
eral welfare'  clauses.  Our  own  decisions  fully  recognize  the  doctrine 
that  municipal  corporations  do  possess,  under  the  general  act,  author- 
ity as  broad  as  that  here  exercised,  and  the  operation  of  that  act  is 
certainly  not  limited  or  restricted  by  the  act  of  1883." 

The  eminent  author  above  referred  to  thus  defines  the  powers  of 
municipal  corporations:  "It  is  a  general  and  undisputed  proposition 
of  law  that  a  municipal  corporation  possesses  and  can  exercise  the 
following  powers,  and  no  others :  First,  those  granted  in  express 
words ;  second,  those  necessarily  or  fairly  implied  in  or  incident  to 
the  powers  expressly  granted ;  third,  those  essential  to  the  declared 
objects  and  purposes  of  the  corporation,  not  simply  convenient,  but 
indispensable.  Any  fair,  reasonable  doubt  concerning  the  existence  of 
the  power  is  resolved  by  the  courts  against  the  corporation,  and  the 
power  is  denied.  Of  every  municipal  corporation,  the  charter  or  stat- 
ute by  which  it  is  created  is  its  organic  act.  Neither  the  corporation 
nor  its  officers  can  do  any  act,  nor  make  any  contract,  or  incur  any 
liability,  not  authorized  thereby,  or  by  some  legislative  act  applicable 
thereto.  All  acts  beyond  the  scope  of  the  powers  granted  are  void." 
Dill.  Mun.  Corp.  (4th  Ed.)  §  89.  Judge  Dillon,  however,  quotes  ap- 
provingly from  the  supreme  court  of  Connecticut  as  follows  (section 
90,  p.  147) :  "All  corporations,  whether  public  or  private,  derive  their 
powers  from  legislative  grant,  and  can  do  no  act  for  which  authority 
is  not  expressly  given  or  may  not  be  reasonably  inferred.  But  if  we, 
were  to  say  that  they  can  do  nothing  for  which  a  warrant  cannot  be 
found  in  the  language  of  their  charters,  we  should  deny  them  in  some 
cases  the  power  of  self-preservation,  as  well  as  many  of  the  means 
necessary  to  effect  the  essential  objects  of  their  incorporation.  And 
therefore  it  has  long  been  an  established  principle  in  the  law  of  cor- 
porations that  they  may  exercise  all  the  powers,  within  the  fair  in- 
tent and  purpose  of  their  creation,  which  are  reasonably  proper  to 
give  effect  to  powers  expressly  granted.  In  doing  this,  they  must  (un- 
less restricted  in  this  respect)  have  a  choice  of  means  adapted  to  ends, 
and  are  not  to  be  confined  to  any  one  mode  of  operation."  Bridge- 
port V.  Railroad  Co.,  15  Conn.  475-501. 

This  principle  has  been  Repeatedly  recognized  by  this  court.  Thus 
in  Smith  v.  City  of  Madison,  7  Ind.  86,  it  is  said:  "The  strictness, 
then,  to  be  observed  in  giving  construction  to  municipal  charters, 
should  be  such  as  to  carry  into  effect  every  power  clearly  intended  to 
be  conferred  on  the  municipality,  and  every  power  necessarily  implied, 
in  order  to  the  complete  exercise  of  the  powers  granted."  Again,  in 
Kyle  V.  Malin,  8  Ind.  34-37,  the  court  said :  "The  action  of  municipal 
corporations  is  to  be  held  strictly  within  the  limits  prescribed  by  the 
statute.     Within  these  limits,  they  are  to  be  favored  by  the  courts. 


MUNICIPAL   POWERS — INHERENT — EXPRESS — IMPLIED  103 

Powers  expressly  granted   or  necessarily  implied  are  not  to  be   de- 
feated or  impaired  by  a  stringent  construction." 

Among  the  implied  powers  possessed  by  municipal  corporations  in 
this  state  are  those  grouped  under  the  somewhat  comprehensive  title 
of  "police  powers," — a  power  which  it  is  difficult  either  to  precisely 
define  or  limit;  a  power  which  authorizes  the  municipality  in  certain 
cases  to  place  restrictions  upon  the  power  of  the  individual,  both  in 
respect  to  his  personal  conduct  and  his  property,  and  also  furnishes 
the  only  authority  for  doing  many  things  not  restrictive  in  their  char- 
acter, the  tendency  of  which  is  to  promote  the  comfort,  health,  con- 
venience, good  order,  and  general  welfare  of  the  inhabitants.  The 
police  power  primarily  inheres  in  the  state;  but  the  legislature  may, 
and  in  common  practice  does,  delegate  a  large  measure  of  it  to  mu- 
nicipal corporations.  The  povv^er  thus  delegated  may  be  conferred  in 
express  terms,  or  it  may  be  inferred  from  the  mere  fact  of  the  creation 
of  the  corporation.  The  so-called  inferred  or  inherent  police  powers 
of  such  corporations  are  as  much  delegated  powers  as  are  those  con- 
ferred in  express  terms,  the  inference  of  their  delegation  growing  out 
of  the  fact  of  the  creation  of  the  corporation,  and  the  additional  fact 
that  the  corporation  can  only  fully  accomplish  the  objects  of  its  crea- 
tion by  exercising  such  powers. 

S.^ecial  charters,  as  well  as  general  statutes  for  the  incorporation  of 
cities  and  towns,  usually  contain  a  specific  enumeration  of  powers 
granted  to,  and  which  may  be  exercised  by,  such  corporations.  In 
many  cases,  the  powers  thus  enumerated  are  such  as  would  be  implied 
by  the  mere  fact  of  the  incorporation.  Where  powers  are  thus  enu- 
merated in  a  statute  which  would  belong  to  the  corporation  without 
specific  enumeration,  the  specific  statute  is  to  be  regarded,  not  as  the 
source  of  the  power,  but  as  merely  declaratory  of  a  pre-existing  pow- 
er, or,  rather,  of  a  power  which  is  inherent  in  the  very  nature  of  a 
municipal  corporation,  and  which  is  essential  to  enable  it  to  accom- 
plish the  end  for  which  it  is  created.  And  the  enumeration  of  powers, 
including  a  portion  of  those  usually  implied,  does  not  necessarily  op- 
erate as  a  limitation  of  corporate  powers,  excluding  those  not  enu- 
merated. Clark  V.  City  of  South  Bend,  85  Ind.  276,  44  Am.  Rep.  13; 
Rank  V.  Sarlls.  129  N.  E.  201,  28  N.  E.  434,  13  L.  R.  A.  481,  28 
Am.  St.  Rep.  185. 

The  corporation,  notwithstanding  such  enumeration,  still  possesses 
all  of  the  usually  implied  powers,  unless  the  intent  to  exclude  them  is 
apparent  either  from  express  declaration,  or  by  reason  of  inconsistency 
between  the  specific  jjowers  conferred  and  those  which  would  other- 
wise be  implied.  The  legislature  can  unf|ucstionably  take  from  mu- 
nicipal corporations  powers  which  would  infcrentially  be  conferred 
upon  them  by  tlieir  creation,  or  it  can  restrict  the  exercise  of  such 
powers,  or  in  any  manner  control  their  exercise;  the  legislative  will 
being  as  to  such  matters  supreme.  \nK)ng  the  implied  jjowers  pos- 
sessed by  municipal  corporations  is  the  power  to  enact  and  enforce 


104  THE   CHARTER 

reasonable  by-laws  and  ordinances  for  the  protection  of  health,  life, 
and  property.  Thus,  in  this  state  it  has  been  held  that,  independently 
of  any  statutory  authority  such  corporations  possess  the  inherent 
power  to  enact  ordinances  for  the  protection  of  the  property  of  its 
citizens  against  fire.  Baumgartner  v.  Hasty,  100  Ind.  575,  50  Am. 
Rep.  830;  Bank  v.  Sarlls,  supra;  Hasty  v.  City  of  Huntington,  105 
Ind.  540,  5  N.  E.  559 ;  Clark  v.  City  of  South  Bend,  85  Ind.  276,  44 
Am.  Rep.  13 ;  Corporation  of  Bluffton  v.  Studabaker,  106  Ind.  129, 
6  N.  E.  1.  This  power  will  not  only  authorize  the  enactment  and  en- 
forcement of  ordinances  establishing  fire  limits,  regulating  building 
and  repairing  buildings,  and  regulating  the  storage  and  traffic  in  in- 
flammable or  explosive  substances,  but  the  purchase  of  apparatus  for 
extinguishing  fires  and  furnishing  a  supply  of  water.  Corporation  of 
Bluffton  V.  Studabaker,  supra.  In  the  case  of  City  of  St.  Paul  v. 
Laidler,  2  Minn.  190,  (Gil.  159,)  72  Am.  Dec.  89,  the  supreme  court 
of  Minnesota,  after  holding  that  a  municipal  corporation  is  "a  creature 
of  the  law,  and  in  the  exercise  of  its  authority  cannot  exceed  the  lim- 
its therein  prescribed,"  says :  "It  is  a  body  of  special  and  limited 
jurisdiction;  its  powers  cannot  be  extended  by  intendment  or  implica- 
tion, but  must  be  confined  within  the  express  grant  of  the  legislature ;" 
and  then  says  further :  "Incidental  to  the  ordinary  powers  of  a  mu- 
nicipal corporation,  and  necessary  to  a  proper  exercise  of  its  functions, 
is  the  power  of  enacting  sanitary  regulations  for  the  preservation  of 
the  lives  and  health  of  those  residing  within  its  corporate  limits." 

If  this  statement  is  correct,  it  follows  that  to  concede  to  municipal 
corporations  the  possession  of  such  powers  does  not  involve  any  ex- 
tension, either  by  intendment  or  implication,  of  the  powers  expressly 
conferred  by  statute;  but  that,  by  the  act  authorizing  the  organization 
of  the  corporation,  the  legislature  expressly  delegates  to  the  municipal- 
ity the  power  to  take  such  steps  as  are  necessary  to  preserve  the  health 
and  safety  (and  we  will  add  the  property)  of  its  inhabitants.  The  in- 
ference of  the  delegation  of  such  powers  follows  inevitably  and  irre- 
sistibly, because  their  exercise  is  necessary  to  the  accomplishment  of 
the  objects  of  the  incorporation.  When  a  municipal  corporation  at- 
tempts to  exercise  any  of  the  powers  thus  implied,  or  inferentially 
conferred,  it  is  within  the  rule  of  Kyle  v.  Malin,  supra,  as  fully  as  it 
is  when  attempting  to  exercise  those  powers  the  warrant  for  which 
is  found  in  the  express  letter  of  its  organic  law.  It  is  to  be  favored 
by  the  courts,  and  such  powers  are  not  to  be  defeated  or  impaired  by 
a  stringent  construction.  It  is,  of  course,  important  and  necessary  to 
know  in  each  case  that  the  power  claimed  is  in  fact  included  in  the 
implied  powers  of  the  corporation. 

There  can  be  little  or  no  doubt  that  the  power  to  light  the  streets 
and  public  places  of  a  city  is  one  of  its  implied  and  inherent  powers,  as 
being  necessary  to  properly  protect  the  lives  and  property  of  its  in- 
habitants, and  as  a  check  on  immorality.  *  *  *  Wherever  men 
herd  together,  in  villages,  towns,  or  cities,  will  be  found  more  or  less 


MUNICIPAL   POWERS — INHERENT — EXPRESS — IMPLIED  105 

of  the  lawless  and  vicious,  and  crime  and  vice  are  plants  which  flourish 
best  in  the  darkness.  So  far  as  lighting  the  streets,  alleys,  and  public 
places  of  a  municipal  corporation  is  concerned,  we  think  that,  inde- 
pendently of  any  statutory  power,  the  municipal  authorities  have  in- 
herent power  to  provide  for  lighting  them.  If  so,  unless  their  discre- 
tion is  controlled  by  some  express  statutory  restriction,  they  may,  in 
their  discretion,  provide  that  form  of  light  which  is  best  suited  to  the 
wants  and  the  financial  condition  of  the  corporation.  It  is  well  settled 
that  the  discretion  of  municipal  corporations,  within  the  sphere  of 
their  powers,  is  not  subject  to  judicial  control,  except  in  cases  where 
fraud  is  shown,  or  where  the  power  or  discretion  is  being  grossly 
abused,  to  the  oppression  of  the  citizen.  Valparaiso  v.  Gardner,  97 
Ind.  1,  49  Am.  Rep.  416;  15  Amer.  &  Eng.  Enc.  Law,  1046,  and 
authorities  there  cited.  We  can  see  no  good  reason  why  they  may 
not  also,  without  statutory  authority,  provide  and  maintain  the  neces- 
sary plant  to  generate  and  supply  the  electricity  required.  Possessing 
authority  to  do  the  lighting,  that  power  carries  with  it  incidentally 
the  further  power  to  procure  or  furnish  whatever  is  necessary  for  the 
production  and  dissemination  of  the  light. 

The  only  authority  cited  which  holds  a  contrary  doctrine  is  that 
of  Spaulding  v.  Inhabitants,  153  Mass.  129,  26  N.  E.  421,  10  L.  R.  A. 
397.  We  are,  however,  unable  to  recognize  the  validity  of  the  rea- 
soning in  that  case.  We  are  unable  to  see  the  analogy  between  the 
city  of  Boston,  because  authorized  to  light  its  streets,  engaging  in 
whale  fishery  to  procure  oil  for  that  purpose,  or  the  other  supposed 
cases,  and  the  generation  and  supply  of  electricity.  Electricity  is  not 
a  commodity  which  can  be  bought  in  the  markets,  and  transported 
from  place  to  place  like  oil.  We  take  judicial  notice  of  the  laws  of 
nature  and  of  nature's  powers  and  forces,  and  therefore  take  judicial 
notice  of  that  which  is  known  as  "electricity,"  and  of  its  properties ; 
not,  of  course,  of  the  various  methods  of  generating  and  transmitting 
or  using  it,  but  of  the  thing  itself,  and  of  its  nature.  As  in  many 
other  cases,  here  the  judicial  presumption  outruns  the  fact,  and  we  are 
supposed  to  know  and  to  take  judicial  notice  of  more  than  we  can 
in  fact  know  in  the  present  state  of  scientific  knowledge.  We  must 
know,  however,  that  it  cannot  be  generated  and  transported  from  place 
to  place  as  we  can  procure  and  transport  oil,  clothing,  etc.,  and  that 
it  can  only  be  conveyed  from  the  place  where  it  is  generated  to  where 
it  is  needed  for  lighting  the  streets,  or  to  the  numerous  inhabitants  of 
a  city,  so  as  to  enable  them  to  use  it  as  a  general  illuminant  by  invok- 
ing and  exercising  the  power  of  eminent  domain. 

The  corporation  possessing,  as  it  does,  the  power  to  generate  and 
distribute  throughout  its  limits  electricity  for  the  lighting  of  its  streets 
and  other  public  places,  wc  can  see  no  good  reason  why  it  may  not 
also  at  the  same  time  furnish  it  to  the  inhabitants  to  light  their  resi- 
dences and  places  of  business.  To  do  so  is,  in  our  opinion,  a  legiti- 
mate exercise  of  the  police  power  for  the  preservation  of  property  and 


lOG  THE   CHARTER 

heallh.  It  is  averred  in  the  complaint  that  the  light  which  the  city 
proposes  to  furnisli  for  individual  use  is  the  incandescent  light.  Here, 
again,  is  a  fact  of  which  wc  are  authorized  to  take  judicial  knowledge. 
A  li-,du  thus  produced  is  safer  to  property  and  more  conducive  to 
health  than  the  ordinary  light.  Produced  by  the  heating  of  a  filament 
of  carbon  to  the  point  of  incandescence  in  a  vacuum,  there  is  nothhig 
to  set  property  on  fire,  or  to  consume  the  oxygen  in  the  surrounding 
air.  and  thus  render  it  less  capable  of  sustaining  life  and  preserving 
health.  But  little  authority  has  been  cited  bearing  on  the  precise  ques- 
tion, and  we  have  been  able  to  find  but  little.     *     *     * 

While  the  authorities  on  the  precise  question  are  meager,  we  think 
the  weight  of  authority,  as  well  as  of  reason,  tends  to  sustain  the  right 
of  the  municipality  through  its  proper  officers,  acting  in  the  exercise 
of  a  sound  discretion,  to  furnish  light  as  well  as  water  to  its  inhabit- 
ants, not  only  in  its  public  places,  but  in  their  private  houses  and  places 
of  business.     *     *     *     Reversed. 


TOWN  OF  NEWPORT  v.  BATESVILLE  &  B.  RY.  CO. 

(Supreme  Court  of  Arkansas,  1893.     58  Ark.  270,  24  S.  W.  427.) 

Action  by  the  Batesville  &  Brinkley  Railway  Company  against  the 
town  of  Newport  on  a  contract  for  the  construction  of  a  levee.  From 
a  judgment  for  plaintiff,  defendant  appeals. 

Hughes,  J.*  The  facts  in  this  case  are  substantially  as  follows: 
The  town  of  Newport  made  a  contract  with  the  Batesville  &  Brinkley 
Railway  Company  to  construct  a  levee  on  two  sides  of  the  town  to 
protect  it  from  overflow,  and  was  to  pay  the  company  therefor,  in 
the  warrants  of  the  town,  $10,000,  and  the  railway  company  was  to 
have  the  privilege  of  using  the  levee  as  a  roadbed  for  its  railway.  One 
line  of  the  levee  was  completed,  accepted,  and  paid  for  by  the  town, 
after  which  it  declined  and  refused  to  accept  and  pay  for  the  other 
line  of  the  levee,  one  of  these  lines  being  north,  and  the  other  south,  of 
the  town.  The  company  having,  as  it  contends,  completed  the  levee 
according  to  the  contract,  brought  this  suit  to  recover  a  balance  of 
$4,480,  which  it  alleges  to  be  due  on  the  contract.     *     *     * 

Had  the  incorporated  town  of  Newport  the  power  to  make  the  con- 
tract which  was  the  foundation  of  this  suit?  In  1  Dill.  Mun.  Corp.  § 
89,  it  is  said :  "It  is  a  general  and  undisputed  proposition  of  law  that  a 
municipal  corporation  possesses  and  can  exercise  the  following  powers, 
and  no  others:  First,  those  granted  in  express  words;  second,  those 
necessarily  or  fairly  implied  in  or  incident  to  the  powers  expressly 
granted;  third,  those  essential  to  the  declared  objects  and  purposes  of 
the  corporation,  not  simply  convenient,  but  indispensable.  Any  fair, 
reasonable  doubt  concerning  the  existence  of  power  is  resolved  by  the 

*  Part  of  the  oinnion  is  omitted. 


MUNICIPAL   POWERS — INHERENT — EXPRESS — IMPLIED  107 

courts  against  the  corporation,  and  the  power  is  denied."  In  Spaulding 
V.  City  of  Lowell,  23  Pick.  (Mass.)  71,  74,  Chief  Justice  Shaw,  in  speak- 
ing of  municipal  and  public  corporations,  says :  "They  can  exercise 
no  powers  but  those  which  are  conferred  upon  them  by  the  act  by 
which  they  are  constituted,  or  such  as  are  necessary  to  the  exercise  of 
their  corporate  powers,  the  performance  of  their  corporate  duties, 
and  the  accomplishment  of  the  purposes  of  their  association."  "It  is 
proper,  too,  that  these  powers  should  be  strictly  construed,  considering 
with  how  little  care  chartered  privileges  are  these  days  granted." 
liank  V.  Town  of  Chillicothc,  7  Ohio,  pt.  2,  pp.  31,  35,  30  Am.  Dec. 
185;  Port  Huron  v.  McCall,  46  Mich.  565,  10  N.  W.  23.  "They  act, 
not  by  any  inherent  right  of  legislation,  like  the  legislature  of  the 
state,  but  their  authority  is  delegated,  and  their  powers,  therefore, 
must  be  strictly  pursued." 

Is  there  any  express  grant  of  power  to  an  incorporated  town  to 
make  a  contract  for  the  building  of  a  levee?  Section  740,  Mansf. 
Dig.,  provides  that  "the  city  council  shall  have  power  to  establish  and 
construct  and  to  regulate  landing  places,  levees,"  etc.  Section  8  of  the 
incorporation  act  of  March  9,  1875.  This  refers  to  cities  of  the  first 
and  second  class,  but  not  to  incorporated  towns.  Their  powers  are  not 
always  the  same.  In  enumerating  the  powers  of  municipal  corpora- 
tions of  all  classes  in  section  18  of  the  act  of  March  9,  1875,  the  power 
to  construct  levees  is  not  given,  though,  as  we  have  seen,  it  is  given  in 
section  8  of  the  act  to  cities  of  the  first  and  second  class.  It  follows, 
therefore,  that  there  is  no  express  grant  of  power  to  incorporated 
towns  to  construct  levees. 

Construing  the  powers  of  municipal  corporations  strictly,  does  it 
appear  beyond  "any  fair,  reasonable  doubt"  that  the  power  of  an  in- 
corporated town  to  make  a  contract  for  the  construction  of  a  levee 
exists?  Is  such  power  "necessarily  or  fairly  implied  in  or  incident  to 
the  j>owers  expressly  granted,"  or  is  such  a  power  "essential  to  the 
declared  objects  and  i)urposes  of  the  corporation,  not  simply  con- 
venient, but  indispensable?"  It  does  not  appear  to  us  that  it  is  nec- 
essary that  an  incorporated  town  should  possess  such  a  power,  in 
order  to  the  exercise  of  its  corporate  powers,  the  perforniance  of  its 
corporate  duties,  and  the  accom])lishnicnt  of  the  purposes  of  its 
organization.  Unless  such  is  the  case,  the  power  is  not  implied 
from  the  grant  of  general  powers  to  an  incorporated  town.  Spaul- 
ding V.  City  of  Lowell,  23  Pick.  (Mass.)  71,  74.  No  "long-estab- 
lishment and  well-settled  usage"  appears  to  have  existed  with  incor- 
porated towns  to  exercise  the  power  to  construct  levees.  In  Minturn 
V.  Larue,  23  How.  435,  16  L.  Ed.  574,  the  court  said  :  "It  is  a  well- 
settled  rule  of  construction  of  grants  by  the  legislature  to  corporations, 
whether  public  or  private,  that  only  such  i)o\vers  and  rigiits  cm  be 
exercised  under  them  as  are  clearly  comprehended  within  the  words 
of  the  acts,  or  derived  therefrom  by  necessary  (fair  and  reasonable) 


ins  THE   CHARTER 

implication,  regard  being  had  to  the  objects  of  the  grant.  Any  am- 
biguity or  doubts  arising  out  of  the  terms  used  by  the  legislature  must 
be  resolved  in  favor  of  the  public."  Thomson  v.  Lee  Co.,  3  Wall. 
327,  18  L.  Ed.  177.  In  Leonard  v.  City  of  Canton,  a  good  reason  is 
given  for  the  rule  that  grants  to  corporations  by  the  legislature  should 
be  strictly  construed.  It  is  because  they  "are  invested  with  a  portion 
of  the  authority  that  properly  appertains  to  the  sovereign  power  of 
the  state,"  and  the  state  never  surrenders  its  just  authority  save  by 
grants  that  are  clear  and  unambiguous.  35  Miss.  189.  When  the  ex- 
ercise of  power  by  a  municipal  corporation  will  result  in  the  imposi- 
tion of  burdens  or  taxes  upon  the  inhabitants,  the  existence  of  the 
power  ought  to  be  clear,  beyond  a  fair,  reasonable  doubt.  A  different 
rule  might  lead  to  mischievous  and  oppressive  consequences. 

We  are  of  the  opinion  that  the  incorporated  town  of  Newport,  in 
making  the  contract  for  the  construction  of  the  levee  in  this  case,  acted 
without  either  express  or  implied  power,  and  that  the  contract  was 
therefore  void.     *     *     *     Reversed. 


II,  Exercise  of  Powers  ^ 


CITY  OF  BIDDEFORD  v.  YATES. 

(Supreme  Judicial  Court  of  Maine,  1908.     104  Me.  506,  72  Atl.  335,  15  Ann. 

Cas.  1091.) 

Trespass  quare  clausum  by  the  City  of  Biddeford  against  Fred- 
erick Yates.     Case  reported  to  the  law  court. 

Spear,  J."  This  is  an  action  of  trespass  involving  the  validity 
of  a  lease  of  the  plaintiff  to  the  defendant.  There  is  no  material 
dispute  upon  the  facts.  The  locus  in  quo  is  the  "opera  house,"  so 
called,  embracing  the  hall  in  the  city  building  and  used  for  the 
purpose  of  giving  plays,  operas,  etc.,  together  with  all  the  rooms 
and  appurtenances  belonging  to  and  connected  with  the  hall.  On 
May  24,  1904,  the  plaintiff  was  the  owner  of  the  hall  and  appurte- 
nances. On  the  same  day  the  city  council  by  its  committee  on 
public  property  made  and  delivered  to  the  defendant  an  instru- 
ment, purporting  to  be  a  lease  of  the  hall,  expiring  June  1,  1907. 
On  February  20,  1907,  another  city  council  by  the  same  committee 
made  a  second  instrument  purporting  to  be  a  lease  of  the  same 
hall  to  take  effect,  in  futuro,  at  the  expiration  of  the  first  lease, 
to  wit,  June  1,  1907,  for  a  term  of  three  years  from  the  latter  date. 
Between  February  20,  1907,  the  date  of  the  second  lease,  and  June 

5  For  discussion  of  iirincii.Ies,  see  Cooley,  Mun.  Corp.  §  41. 
•  Part  of  the  opinion  is  oaiitted. 


EXERCISE   OF   POWERS  109 

1,  1907,  when  it  w^as  to  take  effect,  the  term  of  ofifice  of  the  city 
officials  under  whom  this  lease  was  made  had  expired,  and  on  the 
third  ^londay  of  March  a  new  city  government  had  been  inaugu- 
rated. 

On  the  10th  day  of  June,  the  city  council  passed  the  following 
order:  "Ordered  that  the  city  solicitor  be,  and  hereby  is,  authorized 
to  obtain  possession  of  the  opera  house  and  to  adopt  any  proceed- 
ings that  he  may  deem  necessary  therefor,  including  the  institution 
and  prosecution  of  any  action  at  law  or  equity." 

On  the  23d  day  of  August,  1907,  the  city  solicitor,  Avhose  official 
capacity  is  admitted,  took  physical  possession  of  the  leased  prem- 
ises without  the  knowledge  or  consent  of  the  lessee,  for  the  express 
purpose  of  excluding  him  therefrom,  and  notified  the  defendant  of 
his  assumption  of  possession  and  the  purpose  thereof  and  to  abstain 
from  any  interference  therewith.  On  the  24th  day  of  August, 
Yates,  the  lessee  demanded  of  the  city  solicitor  permission  to  en- 
ter, without  being  obliged  to  break  in,  claiming  a  right  of  occu- 
pancy under  the  instrument  purporting  to  be  a  lease  dated  Febru- 
ary 20,  1907.  Being  refused  admission,  he  forcibly  entered  and 
took  possession  of  the  hall. 

This  was  the  only  public  hall  owned  by  the  city  of  Biddeford 
from  May  1,  1904,  to  the  date  of  the  plaintiff's  writ.  The  charter 
of  the  city  of  Biddeford  contains  the  following  clause:  "The  city 
council  shall  have  the  care  and  superintendence  of  city  buildings 
and  the  custody  and  management  of  all  such  property,  with  power 
to  let  or  sell  what  may  be  legally  let  or  sold."  Under  the  city  char- 
ter admitted  to  have  been  duly  accepted,  authorizing  the  establish- 
ment of  by-laws  and  ordinances  for  the  government  of  the  city, 
was  promulgated  in  1887  the  following  ordinance : 

"Chapter  15.  City  Building.  Section  1.  The  committee  on  pub- 
lic property  shall  have  the  care  and  custody  of  such  building  and 
its  appurtenances,  and  all  the  alterations  and  repairs  thereof.  Sec. 
2.  The  said  committee  are  authorized  to  lease  any  part  of  said 
building  not  already  under  lease  or  appropriated  to  any  of  the 
branches  of  the  city  government  for  any  period  not  exceeding  the 
term  of  three  years,  and  ui)on  such  terms  and  conditions  as  they 
may  deem  cx])cdicnt,  subject,  however,  to  the  api)roval  of  the 
mayor  and  aldermen."     *     *     * 

Plaintiff  admits  the  authority  of  the  city  government  to  lease  the 
opera  house,  if  of  that  species  of  city  property  that  "may  be  legally 
let."  but  the  city  claims  that  the  property  covered  I)\-  ilic  second 
lease  was  "already  under  lease,"  and  tluTcforc  within  the  exception 
of  the  ordinance.  Chapter  l.'^.  §  2.  \Vc  think  this  position  un- 
tenable. The  second  lease  did  not  take  effect  until  after  the  ex- 
piration of  the  term  of  the  first  one,  and  therefore  cannot  be  said, 
in  the  senst-  in  which  the  orrlinance  should  be  construed,  to  cover 
property  "already  under  lease."    The  interpretation  of  this  phrase 


110  THE   CHARTER 

as  claimed  by  the  plaintiff  would  prevent  the  city  from  renewing 
a  lease  even  a  day  before  it  expired.  Such  construction  is  contrary 
to  all  business  methods  and  should  not  be  established  unless  the 
language  of  the  ordinance  expressly  requires  it.  The  phraseology 
docs  not  require  it,  but  rather  its  usual  and  ordinary  meaning,  the 
one  naturally  suggested,  is  that  the  city  should  not  execute  two 
leases  covering  the  same  property  for  the  same  period  of  time.  If 
the  ordinance  was  intended  to  mean  any  more  than  this,  it  could 
easily  have  been  made  to  say  so;  and,  if  the  construction  claimed 
by  the  plaintiff'  had  been  in  the  mind  of  the  legislature,  it  would 
have  said  so.  It  would  never  have  left  so  important  and  unusual 
a  provision,  if  intended  to  mean  what  the  plaintiff  claims,  to  be 
established  by  the  uncertain  interpretation  permissible  by  the  lan- 
guage employed. 

Again,  the  plaintiff  contends  that  the  premises  let  were  public 
property,  and  could  be  rented  only  for  public  purposes  (Thorndike 
V.  Camden,  82  Me.  39,  19  Atl.  95,  7  L.  R.  A.  463;  Goss  v.  Green- 
leaf,  98  Me.  436,  S7  Atl.  581),  and  could  be  used  for  private  pur- 
poses when  not  needed  for  public  use  (Reynolds  v.  Waterville,  92 
Me.,  dissenting  opinion,  page  317,  42  Atl.  559,  and  cases  cited),  and 
that  under  the  leases  in  question  the  public  use  was  made  sub- 
servient to  the  private  use.  The  agreed  statement  does  not- furnish 
any  evidence  of  this  contention,  and,  so  far  as  it  goes,  tends  to  show 
the  reverse;  it  being  admitted  that  the  part  of  the  city  building 
known  as  the  "opera  house"  was  not  appropriated  to  the  use  of 
the  city,  and  was  reserved  for  Memorial  Day,  for  the  graduation 
exercises  of  the  high  school,  and  necessary  rehearsals  therefor. 
The  lessee  was  also  required  to  let  the  hall,  when  not  otherwise 
engaged  in  good  faith,  on  the  payment  of  running  expenses  for  any 
public  purpose  upon  application  by  the  mayor,  to  any  political  body 
in  the  city  at  the  request  of  the  chairman  of  respective  city  com- 
mittees, and  to  any  established  church  in  the  city  one  day  in  each 
year  to  each  such  church.  It  appears  that  the  opera  house  was 
subject  to  all  these  public  uses  free  from  any  charge  except  the 
running  expenses.  These  would  have  to  be  paid  by  some  one, 
whether  the  city  or  the  lessee  was  in  control  of  the  hall. 

Our  conclusion  is  that  under  section  4  of  the  charter,  which  pro- 
vides that  the  city  council  shall  have  "power  to  let  or  sell  what  may 
be  legally  let  or  sold,"  the  first  question  should  be  answered  in  the 
affirmative.  We  need  not  look  beyond  the  city  charter  for  au- 
thority to  exercise  this  power  on  the  part  of  the  city,  as  the  charter 
is  an  act  of  the  Legislature,  and  the  section  under  consideration 
violates  no  provision  of  the  Constitution. 

Whether  the  city  government  could  delegate  authoritv  to  a  com- 
mittee to  let  city  property  depends  entirely  upon  whether  the  dele- 
gation of  such  authority  invested  the  committee  with  judicial  or 
ministerial  powers.     "Functions  which  are  purely  executive,  ad- 


EXERCISE    OF   POWERS  111 

ministrative,  or  ministerial  may  be  delegated  to  a  committee.  It 
is  only  such  functions  as  are  governmental,  legislative,  or  discre- 
tionary which  cannot  be  delegated."  A.  &  E.  Encyc.  of  Law,  vol. 
20,  p.  1218.  These  duties  may  be  simplified  by  classing  them  under 
the  head  of  "ministerial  and  judicial  functions,"  as  the  act  of  every 
public  official  is  either  ministerial  or  judicial.  People  v.  Jerome, 
36  Misc.  Rep.  256,  72)  N.  Y.  Supp.  306.  A  purely  "ministerial  duty" 
is  one  as  to  which  nothing  is  left  to  discretion.  "Judicial  acts"  in- 
volve the  exercise  of  discretionary  power  or  judgment.  Judicial 
acts  are  not  confined  to  the  jurisdiction  of  judges. 

No  question  is  raised  as  to  the  authority  of  the  city  council  to 
appoint  a  committee  on  public  property,  and  none  could  be  raised, 
provided  they  invested  the  committee  with  ministerial  powers  only. 
Hence  the  issue  here  presented  is :  "Did  the  ordinances,  under 
which  the  committee  acted,  confer  upon  it  ministerial  authority 
only,  or  did  it  go  further  and  clothe  it  with  judicial  powers?" 

To  determine  this  issue,  let  us  analyze  the  ordinance  in  question 
and  discover  just  what  powers  it  did  confer  upon  the  committee 
on  public  property.  The  Legislature  in  granting  the  charter  in- 
vested the  committee  with  power  to  let  "what  may  be  legally  let." 
The  ordinance  authorized  the  committee  to  lease  any  part  of  the 
building  not  already  under  lease  or  appropriated  to  the  use  of  the 
city  for  any  period  not  exceeding  three  years.  It  has  already  been 
determined  that  the  lease  embraced  only  what  might  be  "legally 
let."  So  far  the  authority  of  the  ordinance  comports  with  that  of 
the  charter.  The  substance  of  the  act  conferred  by  the  charter  was 
the  right  to  lease.  The  appointment  of  a  committee  by  an  ordi- 
nance was  a  proper  and  convenient  way  to  carry  out  the  details  of  the 
right  conferred.  Without  any  ordinance  at  all,  the  city  council 
could  have  let  the  hall.  The  charter  so  provided.  The  ordinance, 
therefore,  was  made,  as  all  ordinances  are,  for  the  purpose  of  pre- 
scribing a  permanent  method  of  transacting  the  particular  business 
involved.  Therefore  the  language  of  the  ordinance  that  the  com- 
mittee may  lease  "upon  such  terms  and  conditions  as  they  may 
deem  expedient"  involves  simply  those  ministerial  acts  necessary 
to  perform  the  act  of  leasing.  In  tlic  light  of  the  context  which 
determines  that  a  lease  may  be  made,  what  shall  be  let,  and  the 
term  of  the  lease,  this  clause  seems  to  have  been  used  for  the  pur- 
l^ose  of  authorizing  the  committee  to  negotiate  the  various  details 
which  might  arise  in  connection  with  the  transaction  involved. 
Those  things  which  it  would  be  impossible  for  an  ordinance  to  pre- 
scribe in  detail  were  left  to  the  action  of  the  committee.  An  illus- 
tration of  this  [)oint  is  found  in  the  present  case,  where  the  speci- 
fications, submitted  by  the  lessee,  prescribing  various  things  which 
he  stipulated  to  do,  embrace  3  full  pages  and  from  20  to  30  different 
items.     *     *     ♦ 


112  THE   CHARTER 

The  right  of  the  city  council  to  delegate  its  authority  to  a  com- 
mittee to  perform  acts  which  the  council  itself  might  legally  do  was 
raised  in  Hitchcock  v.  Galveston,  96  U.  S.  341,  24  L.  Ed.  659,  m 
which  the  court  hold:  "If  the  city  council  had  lawful  authority 
to  contract  the  sidewalks,  involved  in  it  was  the  right  to  direct 
the  mavor  and  the  chairman  on  streets  and  alleys  to  make  a  con- 
tract on  behalf  of  the  city  for  doing  the  work.  We  spend  no  time 
in  vindicating  this  proposition.  It  is  true  the  city  council  could 
not  delegate  all  the  power  conferred  upon  it  by  the  Legislature, 
but,  like  every  other  corporation,  it  could  do  its  ministerial  work 
by  agents.    Nothing  more  was  done  in  this  case." 

This  case  also  clearly  determines  that,  when  a  city  council  is  au- 
thorized to  make  a  contract,  it  can  appoint  a  committee  to  nego- 
tiate the  details.  To  the  same  effect  is  Han.  &  St.  Jo.  R.  R.  Co.  v. 
Marion  County,  36  Mo.  296,  in  which  it  was,  contended  by  the 
defendant  that  the  county  court  was  the  only  agent  authorized 
by  law  to  issue  instruments  in  payment  to  subscribers  for  stock, 
and  that  the  instruments  were  not  issued  by  the  court,  but  by  cer- 
tain justices  appointed  by  the  court,  and  that  their  act  was  not 
binding  on  the  defendant;  that  is,  that  the  county  court  could  not 
delegate  its  authority  to  the  persons  named.  But  the  appellate 
court  held  otherwise,  saying:  "When  the  Legislature  empowered 
the  county  court  to  subscribe  stock  to  the  railroad  company,  it 
also  clothed  it  with  the  means  which  might  be  convenient  for  mak- 
ing its  action  efifectual.  The  substantive  act  was  the  taking  of 
the  stock." 

To  the  same  efifect,  also,  is  Collins  v.  Holyoke,  146  Mass.  298,  15 
N.  E.  908,  where  the  court  say:  "It  is  true,  as  contended  by  the 
petitioner,  that  the  mayor  and  aldermen  could  not  delegate  the 
authority  given  them  by  the  Public  Statutes  of  1882  (chapter  50,  § 
1)  to  lay  and  make  common  sewers;  but  no  suggestion  is  made 
that  the  sewer  was  not  legally  laid,  and  it  is  only  objected  that  it 
was  'built  under  the  direction  and  supervision  of  a  committee  com- 
posed of  four  members  of  the  common  council  and  three  aldermen.' 
But  this  was  done  by  the  order  of  the  mayor  and  aldermen.  The 
statute  which  gave  them  authority  to  make  the  sewers  did  not  pre- 
clude them  from  employing  agents  to  supervise  and  direct  the 
work."  Hence  it  appears  from  this  opinion  that  the  substance  of 
the  thing  which  could  not  be  delegated  was  the  laying  out  of  the 
sewer,  and  not  the  details  involved  in  its  construction,  some  of 
which  must  necessarily  have  embraced  the  negotiating  of  contracts. 
The  third  objection  raised  by  the  plaintiff  to  the  legality  of  the 
lease  is  based  upon  the  fact  that  one  city  council  made  the  lease  to 
take  effect,  in  futuro,  under  another. 

But  it  must  be  observed  that,  while  the  personnel  may  liave  been 
different,  the  city  council  under  which  the  lease  took  effect  was 
precisely  the  same  tribunal  under  the  charter  and  the  ordinances 


EXERCISE    OF   POWERS  113 

that  executed  the  lease.  The  plaintiff,  however,  contends  that  the 
fact  of  an  election  between  the  execution  of  the  lease  and  the  be- 
ginning of  its  term,  involving  a  possible  change  in  the  personnel 
of  the  new  city  council,  made  the  attempt  to  execute  a  lease,  to 
thus  take  effect,  an  invasion  of  the  prerogatives  of  the  new  board; 
but  we  are  unable  to  discover  any  substantial  reason  in  support 
of  this  contention.  While  the  personnel  of  a  city  government  may 
change,  the  tribunal  itself  is  a  continuous  body.  As  was  said  in 
Collins  V.  Holyoke,  supra:  "The  membership  of  the  defendant 
board  is  not  the  same  as  when  the  assessment  in  question  was 
made ;  but,  while  its  members  change  from  time  to  time,  the  board 
itself  as  a  tribunal  is  continuously  the  same."  See,  also,  Fairbanks 
V,  Fitchburg,  132  Mass.  42.  While  one  city  government  composed 
of  one  set  of  individuals  might,  upon  a  given  question,  do  precisely 
the  reverse  of  another  city  government,  composed  of  a  diff'erent 
set  of  individuals,  yet  what  the  individuals  of  different  city  govern- 
ments might  do  can  in  no  way  affect  the  right  of  the  tribunal  as 
a  city  government  to  act  upon  any  measure  properly  before  it. 
What  the  individuals  may  do  as  a  matter  of  opinion  is  one  thing, 
but  what  the  tribunal,  a  perpetual  body  is  empowered  to  do  as  a 
matter  of  authority,  is  quite  another  thing. 

It  appears  to  us  that  the  logic  of  the  plaintiff's  contention  tends 
to  limit  a  city  council  to  action  with  respect  to  such  matters  only 
as  are  to  go  into  effect  under  its  own  administration.  Such  limi- 
tation would  segregate  a  municipal  government  from  all  other  cor- 
porations and  business  institutions,  in  the  methods  employed  for 
the  transaction  of  business,  and  might,  it  seems  to  us,  prove  highly 
detrimental.  A  municipal  government,  represented  by  its  city 
council,  should  be  regarded  as  a  business  institution  with  reference 
to  those  transactions  or  matters  permitted  by  the  terms  of  its  char- 
ter. When  not  limited  to  a  prescribed  method,  it  should  be  per- 
mitted to  act  with  the  same  business  foresight  that  is  accorded 
to  other  business  institutions.  A  corporation  or  individual  dealing 
in  the  letting  of  property  might  find  it  of  the  highest  importance 
to  make  a  lease  to-day  to  take  effect  months  or  even  years  hence. 
They  might  find  it  equally  detrimental  to  be  limited  in  their  power 
to  thus  anticipate  the  future.  This  idea  is  so  apparent  as  a  business 
proposition  as  to  become  self-evident. 

We  have  seen  that  the  city  council  itself  was  empowered  to 
make  the  lease  in  question  and  could  delegate  authority  to  a  com- 
mittee to  negotiate  its  terms.  Wc  are  therefore  of  the  opinion 
that  a  lease  thus  legally  executed  is  not  void  from  the  fact  that 
it  is  made  by  one  city  council  to  take  effect,  in  futuro,  under  an- 
other. Juflgment  for  the  defendant. 
CooLEY  Cases  Mun.C. — 8 


114  PROCEEDINGS  AND  ORDINANCES 


PROCEEDINGS  AND  ORDINANCES 

I.  The  Governing  Body  ^ 
1.  De;  Facto  Councii, 


ROCHE  V.  JONES. 

(Supreme  Court  of  Appeals  of  Virginia,  1891.    87  Va.  484,  12  S.  E.  965.) 

Fauntleroy,  J.2  This  is  an  appeal  from  a  decree  of  the  circuit 
court  of  Elizabeth  City  county,  pronounced  on  the  7th  day  of 
February,  1890,  in  a  chancery  cause  in  which  the  appellants,  W.  W. 
Roche  and  others,  (licensed  liquor-dealers  under  the  laws  of  the 
state,)  are  complainants,  and  I.  h.  Jones,  sergeant  of  the  town  of 
Hampton,  Va.,  and  Jesse  S.  Jones,  treasurer  of  said  town,  are  de- 
fendants. The  prayer  of  the  bill  was  to  restrain  and  perpetually 
enjoin  the  aforesaid  defendants  from  collecting  the  license  tax 
imposed  by  an  ordinance  of  the  council  of  the  said  town  of  Hamp- 
ton, passed  28th  June,  1889.  An  injunction  was  awarded,  according 
to  the  prayer  of  the  bill  on  the  17th  of  July,  1889,  by  the  judge  of 
the  corporation  court  of  the  city  of  Norfolk ;  and  on  the  7th  day 
of  February,  1890,  the  circuit  court  of  Elizabeth  City  county,  by 
the  decree  appealed  from,  dissolved  the  said  injunction,  and  dis- 
missed the  bill  of  complainants. 

The  validity  of  the  tax  is  assailed  because  it  is  alleged  that  the 
fourteenth  section  of  the  act  approved  May  23,  1887,  entitled  "An 
act  to  incorporate  the  to\yn  of  Hampton,"  which  reads  as  follows: 
"J.  S.  Darling  and  J.  W.  Richardson,  from  the  First  ward ;  A.  D. 
Wallace  and  James  McMinamin,  from  the  Second  ward;  and  Luke 
B.  Phillips  and  John  W.  Williams,  from  the  Third  ward, — are  here- 
by declared  and  appointed  councilmen  of  the  said  town,  to  be  quali- 
fied as  prescribed  by  law,  and  they  shall  constitute  tlie  council 
of  said  town  until  their  successors  are  elected  and  qualified," — is 
in  conflict  with  that  portion  of  the  twentieth  section  of  the  sixth 
article  of  the  constitution  of  Virginia  which  provides  that  "all  city, 
town,  and  village  officers,  whose  election  or  appointment  is  not 
provided  for  by  this  constitution,  shall  be  elected  by  the  electors  of 
such  cities,  towns,  and  villages,  or  of  some  division  thereof,  or  ap- 
pointed by  such  authorities  thereof  as  the  general  assembly  shall 
designate."  This  assignment  of  error  is  not  well  taken.  The  sec- 
tion is  merely  enabling,  and  plainly  intended  to  apply  only  to  offi- 

1  For  discussion  of  principles,  see  Cooley,  Mun.  Corp.  §  45. 

2  Part  of  the  opinion  is  omitted. 


THE   GOVERNING   BODY  115 

cars  to  be  chosen,  under  the  constitution,  after  the  municipal  gov- 
ernment became  lully  and  regularly  established,  and  not  to  ol'ncers 
appointed  by  the  act  itself  to  perform  requisite  duties  until  a  regu- 
lar election  could  be  held.  The  Richmond  Mayoralty  Case,  19 
Grat.  (60  \'a.)  674. 

The  legislature  created  the  office,  and  it  existed  de  jure;  and  the 
incumbents,  named  and  appointed  by  the  act  itself  to  start  and 
put  into  operation  the  organization  of  the  town,  were  constitution- 
ally appointed,  and,  so  far  as  the  validity  of  their  acts  is  concerned, 
they  were  clothed  with  the  insignia  and  authority  to  exercise  the 
powers  and  functions  of  their  appointment.  See  Norton  v.  Shelby 
Co.,  118  U.  S.  411  117,  6  Sup.  Ct.  1121,  30  L.  Ed.  178,  and  cases 
cited;  Leach  v.  People,  122  111.  420,  12  N.  E.  726;  Clark  v.  Town 
of  Easton,  146  Mass.  43,  14  N,  E.  795,  It  is  contended  that  section 
14  of  the  said  act  of  incorporation  is  in  conflict  with  section  1016 
of  the  Code  of  1887,  which  applies  expressly  and  only  to  cities  con- 
taining a  population  of  5,000  or  more,  and  having  a  corporation  or 
hustings  court,  and  cannot  apply  to  the  town  of  Hampton;  but, 
even  if  the  contention  were  well  taken,  the  conflict  could  not  aftect 
the  validity  of  the  acts  de  facto  of  the  council  named  by  the  char- 
ter. And  we  think  the  intention  of  the  legislature  is  plain  to  pro- 
vide, by  the  fourth  section  of  the  charter,  for  the  election  of  the 
regular  and  permanent  officers  of  the  town  ;  and  by  the  fourteenth 
section,  for  the  requisite  officers  until  such  election  could  be  held. 

The  fourth  objection  raised  is  that  the  tax  was  levied  by  less 
than  a  two-thirds  vote  of  the  council,  and  is  therefore  in  violation 
of  the  requirement  of  section  1035  of  the  Code  of  1887.  The  coun- 
cil is  comi)osed  of  six  members,  four  of  whom  constitute  two-thirds. 
Five  members  w^ere  present  at  the  meeting  which  passed  the  tax 
ordinance,  four  of  whom  voted  for,  and  one  against,  the  ordinance. 
It  is  alleged  that  Councilman  A.  D.  Wallace,  who  voted  for  the  or- 
dinance, had,  about  two  weeks  before  its  passage,  moved  his  resi- 
dence beyond  the  corporate  limits  of  the  town,  and  had  thereby 
vacated  his  office  of  councilman,  and  that  consequently  his  vote 
was  a  nullity.  But  this  is  a  non  sequitur.  as  Wallace  had  con- 
tinued to  exercise  his  office  as  councilman,  and  t(.  (liscliarL,'^c  its 
functions,  until  1st  July,  1889,  when  his  successor  qualified.  He 
was  a  de  facto  councilman,  and  his  acts  as  such  were  valid  and 
binding.  Montcith  v.  Com.,  15  Grat.  (56  Va.)  172;  Griffin's  E.x'r 
v.  Cunningham,  20  Grat.  (61  Va.)  40;  McCraw  v.  Williams.  3^ 
Grat.  (74  Va.)  513;  Blackw.  Tax  Titles,  pp.  100,  103.  *  ♦  * 
Affirmed. 


IIG  PROCEEDINGS    AND    ORDINANCES 


MAGNEAU  V.  CITY  OF  FREMONT. 

(Supreme  Court  of  Nebraska,  1S90.     30  Neb.  843,  47  N.  W.  280,  9  Ii.  R.  A. 

786,  27  Am.  St  Rep.  436.) 


See  post,  p.  119,  for  a  report  of  the  case. 


II.  Mode  of  Action' 


In  re  WILSON. 
(Supreme  Court  of  Minnesota,  1884.    32  Minn.  145,  19  N.  W.  723.) 

MiTCHELi.,  J.*  Section  5,  c.  4,  of  the  charter  of  the  city  of  Min- 
neapolis, provides:  "The  city  council  shall  have  full  power  and 
authority  to  make,  ordain,  publish,  enforce,  alter,  amend,  or  repeal 
all  such  ordinances  for  the  government  and  good  order  of  the  city, 
for  the  suppression  of  vice  and  intemperance,  and  for  the  preven- 
tion of  crime,  as  it  shall  deem  expedient ;  and  in  and  by  the  same 
to  declare  and  impose  penalties  and  punishments,  and  enforce  the 
same  against  any  person  or  persons  who  may  violate  the  provisions 
of  any  ordinance  passed  and  ordained  by  it ;  and  all  such  ordi- 
nances are  hereby  declared  to  be  and  to  have  the  force  of  law,  pro- 
vided that  they  be  not  repugnant  to  the  laws  of  the  United  States, 
or  of  the  state.  And  for  these  purposes  the  said  city  council  shall 
have  authority  by  such  ordinances — First,  to  license  and  regulate, 
among  others,  all  persons  vending,  dealing  in,  or  disposing  of 
spirituous,  vinous,  fermented,  or  malt  liquors." 

The  mode  in  which  these  powers  are  to  be  exercised  is  specified 
as  follows  in  sections  8  and  9  of  the  same  chapter:  "The  style  of 
all  ordinances  shall  be,  'The  city  council  of  the  city  of  Minneapolis 
do  ordain.'  The  subject  of  every  ordinance  shall  be  expressed  in 
its  title,  and  no  ordinance  shall  embrace  more  than  one  subject. 
Section  9.  All  ordinances  and  resolutions  of  the  city  council  shall 
be  passed  by  an  affirmative  vote  of  a  majority  of  all  the  members 
of  the  council  by  ayes  and  noes,  which  shall  be  entered  on  the  rec- 
ords of  the  council.  No  ordinance  shall  be  passed  at  the  same 
meeting  of  the  council  at  which  it  shall  have  been  presented,  ex- 
cept by  unanimous  consent  of  all  the  members  present,  which  shall 
be  noted  in  the  record.  When  approved,  they  shall  be  recorded 
by  the  city  clerk  in  books  provided  for  that  purpose ;  and  before 
they  shall  be  in  force  they  shall  be  published  in  the  official  paper 
of  the  city." 

3  For  discussion  of  principles,  see  Cooley,  Mun.  Corp.  §  46. 
*  Part  of  tbe  opinion  is  omitted. 


MODE    OF   ACTION  117 

Section  1  of  chapter  3  provides  that  "all  ordinances  and  resolu- 
tions shall,  before  they  take  effect,  be  presented  to  the  mayor,  and 
if  he  shall  approve  thereof  he  shall  sign  the  same.  If  he  returns 
it  with  objections,  the  council  may  pass  it  by  a  two-thirds  vote; 
and  if  he  retains  it  five  days,  it  shall  have  the  same  force  and  effect 
as  if  approved  by  him." 

On  the  28th  of  April,  1884,  the  city  council  passed  "An  ordinance 
to  license  and  regulate  all  persons  vending,  dealing  in,  or  disposing 
of  spirituous,  vinous,  fermented,  or  malt  liquors;"  section  1  of 
which  reads:  "No  person  shall  sell,  vend,  deal  in,  or  dispose  of 
any  spirituous,  vinous,  fermented,  or  malt  liquors,  or  beverages,  for 
any  use  or  purpose  whatever,  in  or  at  any  building  or  other  place 
within  the  limits  of  the  city  of  Minneapolis,  without  having  ob- 
tained a  license  therefor  in  the  manner  herein  provided."  Section 
2  reads:  "No  person  shall  be  licensed  to  sell,  vend,  deal  in,  or 
dispose  of  any  spirituous,  vinous,  fermented,  or  malt  liquors  or 
beverages,  for  any  use  or  purpose  whatever,  in  or  at  any  building 
or  other  place  within  the  limits  of  the  city  of  Minneapolis,  *  *  * 
who  intends,  if  licensed,  to  carry  on  his  business,  or  who  will,  when 
licensed,  carry  on  his  business,  outside  of  those  districts  in  said 
city  which  shall  hereafter  be  designated  and  known  as  'active  patrol 
districts,'  to  be  designated  as  hereinafter  required."  Section  3 
reads:  "Any  person  desiring  a  license  to  sell,  vend,  deal  in,  or  dis- 
pose of  any  spirituous,  vinous,  fermented,  or  malt  liquors  or  bev- 
erages in  said  city  of  Minneapolis,  shall  make  an  affidavit  and  file 
the  same  with  the  city  clerk  of  said  city,  in  which  affidavit  said 
person  shall  state  fully  and  explicitly  *  *  *  whether  or  not 
said  room  or  rooms,  where  he  intends  to  and  will  carry  on  his  busi- 
ness if  licensed,  is  within  those  districts  in  said  city  which  have 
been  duly  designated  as  'active  patrol  districts'  of  said  city."  Sec- 
tion 9  reads :  "The  mayor  of  said  city  shall  designate  such  portions 
of  said  city  as  he  shall  deem  best,  to  be  known  and  designated  as 
'active  patrol  districts,'  and  shall  submit  the  same  to  the  city 
council  for  its  approval;  and,  when  approved  by  said  city  council', 
the  same  shall  be  and  become  the  districts  of  said  city,  which  shall 
be  constantly  patrolled  by  the  police  force  of  said  city,  under  the 
instructions  of  said  mayor.  Said  active  patrol  districts  may  be 
changed  at  any  time  by  said  mayor,  by  the  like  approval  of  said 
city  council."  The  other  provisions  of  the  ordinance  need  not  be 
here  cited.  After  its  passage  and  publication,  the  mayor,  in  pur- 
suance of  the  provisions  of  section  9,  designated  certain  portions 
of  the  city  (embracing  a  district  two  or  more  miles  in  length,  and 
of  an  average  width  of  about  half  a  mile,  and  including  most  of  the 
business  portion  of  the  city)  as  "active  patrol  districts,"  and  sub- 
mitted the  same  to  the  council,  which  approved  the  same  by  reso- 
lution.    ♦     *     * 


118  PROCEEDINGS  AND  ORDINANCES 

We  have  no  doubt  whatever  of  the  power  of  the  city  council  to 
determine  where,  and  within  what  portions  of  the  city  the  business 
of  selHng  and  dealing  in  intoxicating  hquors  may  be  carried  on. 
This  right  is  impHed  and  included  in  the  power  to  regulate.  And 
if  they  deem  that  the  good  order  of  the  city  requires  that  this 
traffic  shall  be  excluded  from  the  suburban  and  residence  portions 
of  the  city,  and  confined  to  the  more  central  and  business  portions, 
where  it  can  be  kept  under  more  effectual  police  surveillance,  their 
power  to  do  so  is,  in  our  judgment,  undoubted.  •  Under  a  grant  of 
police  power  to  regulate,  the  right  of  the  municipal  authorities  to 
determine  where  and  within  what  limits  a  certain  kind  of  business 
may  be  conducted,  has  been  often  sustained.  For  example,  the 
place  where  markets  might  be  held ;  where  butchers'  stalls  or 
meat-shops  may  be  kept;  where  hay  or  other  produce  shall  be 
weighed;  where  auctions  may  be  held;  the  limits  within  which 
certain  kinds  of  animals  shall  not  be  kept;  within  which  the  busi- 
ness of  tallow  chandler  shall  not  be  carried  on ;  within  which  gun- 
powder shall  not  be  stored;  within  which  slaughter-houses  shall 
not  be  kept;  the  distance  from  a  church  within  which  liquor  shall 
not  be  sold.  Such  cases  might  be  multiplied  almost  indefinitely. 
If,  under  the  general  police  power  to  regulate,  this  can  be  done 
as  to  such  kinds  of  business,  on  what  principle  Can  it  be  claimed 
that  similar  regulations  may  not  be  adopted  as  to  the  sale  of  in- 
toxicating liquors, — a  traffic  which  all  civilized  communities  deem  nec- 
essary to  place  under  special  police  regulations  and  restraints?  Of 
course  such  regulations  must  be  reasonable,  of  which  fact  the  courts 
must  judge.  But,  in  assuming  the  right  to  do  so,  courts  will  not  look 
closely  into  mere  matters  of  judgment,  and  set  up  their  own  judg- 
ment against  that  of  the  municipal  authorities,  when  there  is  a  reason- 
able ground  for  a  difference  of  opinion.  But  this  power  to  regulate 
is  vested  in  the  city  council.  It  is  a  power  which  they  cannot  delegate 
to  any  person  or  officer.  It  is  a  legislative  act,  which  they  must  per- 
form themselves,  and  they  can  only  exercise  it  by  ordinance,  enacted 
in  the  manner  prescribed  in  the  charter.  Of  course,  they  may  impose 
mere  executive  or  ministerial  duties,  such  as  approving  the  bond,  re- 
ceiving the  license  fee,  and  issuing  the  license,  on  certain  officers,  as 
they  have  done  in  the  present  case.  These  are  mere  executive  and 
ministerial  acts  to  be  performed  in  the  execution  of  the  ordinance ; 
but  they  cannot  delegate  their  legislative  powers.  The  ordinance,  in 
that  respect,  must  be  complete  when  it  leaves  the  hands  of  the  city 
council. 

The  limits  within  which  the  sale  of  liquor  should  be  confined  is  a 
matter  which  the  council  must  determine  for  themselves.  It  calls  for 
the  exercise  of  legislative  discretion.  They  can  no  more  remit  to  the 
mayor  the  right  to  determine  this  than  they  can  the  question  of  the 


MEETINGS 


119 


amount  of  the  license  fee.    But  this  is,  in  effect,  what  they  have  done 
in  this  case. 

The  ordinance  nowhere  defines  the  Hmits  of  the  "Hcense  districts." 
It  leaves  this  to  be  done  by  the  mayor,  under  the  name  of  "active 
patrol  districts,"  which  is  but  another  name  for  license  districts.  The 
matter  is  somewhat  obscured  by  calling  them  "active  patrol  districts." 
But  when  the  ordinance  is  stripped  of  all  disguises,  the  stubborn  fact 
remains  that  it  is  the  judgment  and  discretion  of  the  mayor,  and  not 
of  the  council,  which  is  to  determine  in  what  parts  of  the  city  this  busi- 
ness may  be  carried  on.  The  difficulty  is  not  obviated  by  the  fact  that 
the  action  of  the  mayor  is  to  be  approved  by  the  council.  This  may 
be  done  by  a  mere  resolution,  passed  by  a  bare  majority  of  a  quorurn, 
at  the  same  meeting  at  which  it  is  introduced;  whereas  the  council 
can  only  legislate  on  this  subject  by  ordinance,  passed  in  the  manner 
prescribed  by  section  9,  c.  4,  of  the  charter  already  quoted.  This 
ordinance  carries  with  it  the  seeds  of  its  own  dissolution;  for,  under 
the  last  clause  of  section  9,  the  mayor  might  at  any  time,  with  the  ap- 
proval of  a  bare  majority  of  a  quorum  of  the  council,  extend  the 
license  district  so  as  to  include  the  whole  city.  In  legislating  upon 
this  question,  it  is,  of  course,  eminently  proper  that  the  council  should 
take  into  account  what  parts  of  the  city  can  conveniently  be  patrolled 
by  the  police ;  but,  after  all  this,  they  must  themselves  exercise  their 
legislative  discretion  in  fixing  the  limits  of  the  license  district.    *    ' 


*       *   6 


III.  Meetings 


MAGNEAU  V.  CITY  OF  FREMONT. 

(Supreme  Court  of  Nebraska,  1890.    30  Neb.  843,  47  N.  W.  280,  9  L.  R.  A.  7SG, 

27  Am.   St.  Rep.  43G.) 

NoRVAL,  J.''  This  suit  was  brought  in  the  district  court  of 
Dodge  county  to  enjoin  the  collection  of  certain  occupation  taxes 
imposed  upon  various  occupations  within  the  city  by  ordinance  No. 
231,  and  to  have  said  ordinance  declared  void.  The  district  court 
found  the  issue  in  favor  of  the  defendants,  and  dismissed  the  action. 
The  plaintiffs  appeal.  The  city  of  Fremont  is  a  city  of  the  second 
class  having  over  5,000  inhabitants.  It  is  divided  into  four  wards, 
and,  under  the  act  or  charter  which  governs  cities  of  that  class,  is 
entitled  to  eight  councilmen,  two  from  each  ward.     At  the  general 

B  Writ  f)f  (•(•rtiuiiiri  was  (Jciiicil    in   tliis  rase  solely  on  the  grouud  that  it 
was  not  tlie  proper  remerly.     See  In  ir  Wilson,  post,  p.  319. 
n  For  discussion  of  jdiiKlplcs,  see  C'oolcy.  Mnn.  Cor]).  §  48. 
'  I'art  of  the  opinion   is  omitted. 


120  PROCEEDINGS  AND  ORDINANCES 

election,  held  in  said  city  on  the  1st  day  of  April,  1890,  E.  N.  Morse 
was  elected  councilman  from  the  Second  ward  as  the  successor  to 
J.  J.  Lowery,  and  D.  Hein  was  elected  from  the  Third  ward  as  the 
successor  to  C.  A.  Peterson.  At  a  session  of  the  city  council  held 
on  April  3,  1890,  the  votes  cast  at  the  last  city  election  were  can- 
vassed, and  Morse  and  Hein  were  declared  elected.  This  meeting  was 
adjourned  to  April  4th,  wdien  the  ordinance  in  question  was  intro- 
duced, and  read  the  first  time.  An  adjourned  session  was  held  on 
April  5th,  when  the  ordinance  was  read  a  second  time,  and  the  meet- 
ing was  adjourned  to  April  9th-  On  that  date  the  council  met,  pur- 
suant to  adjournment,  when  the  ordinance  was  read  a  third  time,  and 
passed.  There  was  present  and  participated  at  this  session,  besides 
the  mayor,  councilmen  Biles,  Esmay,  Plambeck,  Harmes,  Wilcox,  Pe- 
terson, and  Lowery.  On  April  7th,  prior  to  the  passage  of  this  or- 
dinance,   the   councilmen-elect   Morse   and   Hein    qualified.     *     *     * 

It  is  conceded  that  all  who  participated  at  the  meeting  when  the 
ordinance  was  adopted  were  legal  members  of  the  council  except 
Peterson  and  Lowery,  whose  right  to  act  is  questioned  on  the  ground 
that  their  successors  had  previously  qualified  on  April  7th.  The 
statute  requires  that  tw'O-thirds  of  all  the  members  of  the  council 
shall  be  necessary  to  constitute  a  quorum  for  the  transaction  of  busi- 
ness. It  is  obvious  that  if  Peterson  and  Lowery  could  not  lawfully 
act  wnth  the  council  at  that  meeting,  no  quorum  was  present,  and 
the  ordinance  is  invalid.  Section  12,  art.  2,  c.  14,  Comp.  St.,  pro- 
vides that  in  cities  of  the  second  class  having  more  than  5,000  in- 
habitants there  shall  be  elected,  annually,  in  each  ward,  one  council- 
man, who  shall  hold  his  office  for  the  term  of  two  years,  and  until  his 
successor  shall  be  elected  and  qualified.  There  being  no  statutory 
provision  fixing  a  particular  date  when  the  term  of  office  of  a  coun- 
cilman shall  begin,  it  is  believed  that  the  provisions  of  said  section  12 
control,  and  that  the  term  of  such  officer  commences  immediately 
after  the  person  elected  has  qualified.  While  Morse  and  Hein  had 
qualified,  they  had  not,  as  yet,  taken  their  seats  in  the  council,  or  par- 
ticipated in  the  proceedings  of  that  body.  The  names  of  Lowery 
and  Peterson  appeared  upon  the  roll  of  members,  and  they  were 
recognized  as  such  by  other  members  of  the  council,  as  well  as  by  the 
mayor  and  city  clerk.  They  took  part  in  the  proceedings  of  the  coun- 
cil on  April  9th  without  objection  from  any  one,  although  Morse  and 
Hein  were,  at  the  time,  in  the  council  chamber.  We  conclude,  there- 
fore, that  Morse  and  Hein  were  de  jure  officers,  and  that  Lowery 
and  Peterson  were  de  facto  members  of  the  city  council. 

The  cases  are  numerous  which  hold  that  the  acts  of  a  de  facto  offi- 
cer, so  for  as  they  involve  the  interests  of  the  public,  or  third  persons, 
are  as  valid  and  binding  as  though  he  was  an  officer  de  jure.  *  *  * 
In  State  v.  Gray,  23  Neb.  365,  36  N.  W.  577,  it  was  held  that  "the 
acts  of  councilmen  de  facto,  within  the  power  of  the  statute,  will 
be  recognized  and  upheld."     In  Braidy  v.  Theritt,  17  Kan.  468,  the 


MEETINGS  121 

defendant  exercised  the  duties  of  councilman  of  the  city  of  Watena 
after  his  successor  had  been  elected  and  qualified.  It  was  held  that 
Theritt  was  a  de  facto  officer.     *     *     * 

The  following  cases  support  the  same  doctrine:  Norton  v.  Shelby 
Co.,  118  U.  S.  449,  6  Sup.  Ct.  1121,  30  L.  Ed.  178;  Carli  v.  Rhener. 
27  Minn.  292,  7  N.  W.  139;  Leach  v.  People,  122  111.  420,  12  N.  E. 
726;  People  v.  Bangs,  24  111.  184;  Trumbo  v.  People,  75  111.  561. 
It  follows  from  the  reason  of  these  cases  that  the  acts  of  Lowery 
and  Peterson  are  valid,  and  that  there  was  a  quorum  of  the  city 
council  present  at  the  time  the  ordinance  was  adopted.     *     *     * 

It  is  also  claimed  that  the  city  council  had  no  authority  to  pass  or- 
dinance 231  at  the  meeting  at  which  it  was  adopted.  Ordinance  No. 
3,  of  the  city  of  Fremont,  provides  that  the  regular  meetings  of  the 
council  shall  be  held  on  the  last  Tuesday  of  each  month.  It  is  con- 
ceded that  the  ordinance  under  consideration  was  not  acted  upon 
at  such  a  meeting,  nor  at  any  adjourned  session  thereof.  It  is  pro- 
vided by  ordinance  No.  79  that  the  mayor  and  council  shall  meet 
on  the  Thursday  following  each  city  election,  and  canvass  the  re- 
turns of  the  votes  cast  at  such  election.  A  meeting  was  held  April 
3d,  when  the  votes  cast  at  the  city  election,  held  on  April  1st,  were 
canvassed.  Prior  to  this  meeting,  a  call  was  issued  by  the  mayor  for 
a  meeting  of  the  council  on  April  3d,  to  canvass  the  votes  of  the  city 
election,  and  to  transact  any  business  that  might  lawfully  come  be- 
fore the  council.  At  the  meeting  held  on  April  3d,  the  mayor  and 
all  the  members  of  the  council  were  present,  except  Archer.  This 
meeting  was  adjourned  to  the  following  day,  at  which  time,  the  mayor 
and  all  the  councilmen  being  present,  the  ordinance  was  introduced, 
read  the  first  time,  and  the  meeting  adjourned  to  April  5th.  On  that 
date,  there  were  present  the  mayor  and  all  the  councilmen  except 
Plambeck.  The  ordinance  was  then  read  a  second  time,  and  an  ad- 
journment taken  to  April  9th.  On  the  last-named  date,  all  the  mem- 
bers of  the  council  being  present,  except  Archer,  the  ordinance  was 
read  a  third  time,  and  passed. 

The  meeting  held  on  April  3d  was  for  the  special  purpose  of  can- 
vassing the  returns  of  the  city  election.  Plad  it  been  a  regular  meet- 
ing, then  any  cori)orate  business  could  have  been  lawfully  trans- 
acted at  any  adjourned  session  thereof.  The  statute  authorizes  the 
mayor  or  any  two  councilmen  to  call  special  meetings.  Whether  the 
call  must  specify  the  object  of  such  a  meeting,  the  statute  is  silent, 
and  the  decisions  of  the  courts  are  conflicting  ui)on  that  question.  At 
any  rate,  the  purpose  and  object  of  the  call  is  to  apprise  the  members 
of  the  proposed  meetings  so  that  they  may  attend.  So  it  seems  clear 
to  us  that,  when  all  the  members  of  the  council  and  the  mayor  meet 
and  act  as  a  body,  they  may  at  such  meeting,  or  at  any  adjourned 
session  thereof,  transact  any  business  within  the  powers  conferred  by 
law,  notwithstanding  no  written  call  for  the  meeting  was  made  by 
the  mayor  or  two  councilmen,  or  in  case  one  was  made  which  failed 


122  PROCEEDINGS  AND  ORDINANCES 

to  specify  the  purpose  of  the  meeting.  At  the  session  held  on  April 
4th,  at  which  the  ordinance  was  introduced  and  read,  the  mayor  and 
all  the  members  of  the  council  were  present  and  acted.  All  the  mem- 
bers were  notified  of  the  meeting  at  which  the  ordinance  was  read  the 
second  time  by  the  adjournment  of  the  previous  meeting,  when  all 
were  present,  and  all  had  notice  of  the  meeting  at  which  the  ordi- 
nance was  passed  by  the  adjournment  of  the  meeting  held  on  April 
5th  except  Plambeck,  and  he  was  present  and  participated  at  the 
meeting  when  the  ordinance  was  finally  passed.  In  view  of  these 
facts,  we  must  hold  that  the  council  was  in  lawful  session  when  each 
step  was  taken  when  passing  this  ordinance.     *     *     *     Affirmed. 


IV.  Ordinances — Mode  of  Enactment' 


SWINDELL  V.  STATE  ex  rel.  MAXEY. 
(Supreme  Court  of  Indiana,  1895.    143  Ind.  153,  42  N.  E.  528,  35  L.  R.  A.  50.) 

Mandamus,  on  the  relation  of  James  W.  Maxey  and  another,  against 
Joseph  Swindell,  mayor  of  the  city  of  Plymouth,  to  compel  respond- 
ent to  recognize  relators'  claims  to  offices  of  councilmen.  From  a 
judgment  for  relators,  respondent  appeals. 

Jordan,  J."  The  relators,  James  W.  Maxey  and  William 
O'Keefe,  instituted  and  prosecuted  this  action  in  the  lower  court,  in 
the  name  of  the  state,  to  obtain  a  writ  of  mandate  against  the  appel- 
lant, as  the  mayor  of  the  city  of  Plymouth,  Marshall  county,  Ind., 
to  compel  him  to  recognize  them,  each,  as  members  of  the  common 
council  of  the  city,  and  permit  them  to  each  exercise  the  duties  of 
the  office  of  councilman.  The  application  for  the  writ  substantially 
sets  forth  that  on  April  25,  1873,  Plymouth  was  incorporated  as  a 
city,  under  and  in  pursuance  of  the  general  laws  of  the  state  of  In- 
diana applicable  to  the  incorporation  of  cities;  that  the  city  upon 
its  incorporation  was  divided  into  three  wards,  and  that  this  division 
continued  until  the  27th  day  of  August,  1894,  when  the  common  coun- 
cil thereof,  being  then  composed  of  six  councilmen,  at  a  regular  meet- 
ing, by  an  ordinance  duly  passed  and  adopted  at  said  meeting,  divided 
the  city  into  four  wards,  thereby  creating  an  additional  one,  which 
was  designated  as  the  "Fourth  Ward";  that  immediately  after  cre- 
ating this  ward  said  council  at  the  said  meeting  did  appoint  the  re- 
lators as  councilmen  therefrom,  to  fill  the  vacancies  existing  in  said 
council  by  reason  of  the  creation  of  the  additional  ward.  The  due 
qualification  of  the  relators  as  members  of  the  council  is  alleged,  and 

8  For  discussion  of  principles,  see  Cooley,  Mun.  Corp.  §§  49,  50. 

9  Part  of  the  opinion  is  omitted. 


ORDINANCES — MODE  OF  ENACTMENT  123 

it  is  charged  that  the  mayor,  as  the  presiding  officer  of  the  common 
council,  has  refused  to  recognize  them,  or  either  of  them,  and  refuses 
to  permit  them,  or  either  of  them,  to  exercise  their  rights  as  such 
councilmen,  and  that  he  had  directed  the  clerk  not  to  call  the  names 
of  said  relators  when  present  upon  occasions  when  it  was  necessary 
to  constitute  a  quorum,  etc.     *     *     * 

The  two  cardinal  propositions  involved  for  a  decision  in  this  ap- 
peal are :  First.  Was  the  common  council  of  the  city  of  Plymouth  au- 
thorized by  law  to  adopt  the  ordinance  whereby  the  additional  ward 
was  created,  from  which  the  relators  were  appointed  as  councilmen? 
Second.  If  the  council  was  so  empowered,  was  the  ordinance  in  ques- 
tion legally  and  validly  adopted?  We  will  consider  and  determine 
these  two  questions  in  their  order.     *     *     * 

The  second  proposition  with  which  we  are  confronted  is  vital  in 
its  bearing  upon  the  action  of  the  council  in  passing  the  ordinance 
in  controversy.  The  validity  of  the  ordinance  is  essential  or  funda- 
mental to  the  claims  made  by  the  relators.  If  for  any  reason  it  is 
invalid,  the  rights  of  the  latter  are  unfounded,  and  the  appellant 
would  be  justified  in  his  refusal  to  recognize  them  as  members  of  the 
council,  and  hence  they  must  necessarily  fail  in  the  prosecution  of 
this  action.  On  May  26,  1873,  the  common  council  of  the  appel- 
lant's city  duly  passed  and  adopted  an  ordinance  embracing  a  series 
of  rules  and  regulations  for  the  government  of  the  common  council  in 
the  transacting  of  its  business,  and  as  to  the  mode  of  proceeding  in 
the  enactment  of  ordinances.  Some  of  these  are  merely  rules  of  par- 
liamentary law.  Section  21  of  this  ordinance  is  as  follows:  "All 
ordinances  shall  be  read  three  times  before  being  passed,  and  no 
ordinance  shall  pass  or  be  read  the  third  time  in  the  same  meeting 
[that]  it  was  introduced,  provided  that  the  council  may  suspend  the 
rule  by  a  two-thirds  vote,  and  put  an  ordinance  upon  its  passage 
by  one  reading  at  the  time  it  is  read."  There  is  no  question  but 
what  this  rule  was  in  full  force  and  effect  at  the  time  of  the  intro- 
duction of  the  ordinance  under  consideration,  and  there  is  evidence 
showing  that  it  had  generally  been  recognized  and  followed  by  the 
council  in  the  ado])tion  of  ordinances.  It  is  the  rule  set  up  and  re- 
lied upon  by  appellant  in  the  second  paragraph  of  his  answer,  in 
which  it  was,  in  substance,  alleged  that  tlie  ordinance  u])on  which  the 
relators  based  their  claim  and  right  to  be  recognized  and  to  act  as 
councilmen  had  been  passed  in  violation  thereof. 

During  the  trial  the  court  permitted  the  ajjpellant  to  introduce  this 
rule  or  ordinance  in  cviflcnce,  but  subsequently,  before  the  cause  was 
finally  submitted  to  the  jury,  u[)on  the  motion  of  appellees,  the  court 
struck  out  and  withdrew  this  evidence,  over  appellant's  objections 
and  exceptions;  and  this  action  of  tiie  court  was  assigned  as  one  of 
the  reasons  in  the  motion  for  a  new  trial.  The  trial  court  seemingly 
justified  its  action  in  eliminating  this  evidence  upon  the  grounfl,  as 
insisted  by  the  relators,  that  this  rule  had  been  repealed,  as  the  re- 


124  PROCEEDINGS   AND    ORDINANCES 

suit  of  the  motion  made  by  Councilman  Tibbetts,  and  carried  in  the 
manner  as  we  have  heretofore  stated,  and  that  the  same  was  not  in 
force  when  the  ordinance  in  question  was  passed.  The  verbal  mo- 
tion made  by  this  councilman,  as  recorded  by  the  clerk,  by  which  it 
was  sought  to  effectually  repeal  the  rules  ordained  for  the  govern- 
ment of  the  council,  was,  to  say  the  least,  somewhat  indefinite.  When 
recorded  it  read,  "Tliat  the  rules  heretofore  governing  the  proceed- 
ings of  council  as  printed  in  the  ordinance  book  be  and  the  same  are 
hereby  annulled  and  repealed!'    (The  italics  are  our  own.) 

Ordinances  of  cities  are  held  to  be  in  the  nature  and  character  of 
local  laws  adopted  by  a  body  vested  with  legislative  authority,  and 
coupled  with  the  power  to  enforce  obedience  to  its  enactments.  The 
power  with  which  common  councils  of  cities  are  invested  to  enact 
ordinances  and  by-laws  implies  the  power  to  amend,  change,  or  re- 
peal them,  provided  that  vested  rights  are  not  thereby  impaired.  But 
certainly  it  cannot  be  successfully  asserted  that  the  law  will  yield  its 
sanction  to  the  mode  employed  to  repeal  the  one  by  which  the  rule 
in  controversy  was  ordained  and  established.  If  the  procedure  by 
which  the  power  of  repeal  was  attempted  to  be  exercised  upon  the 
occasion  in  question  could  be  sustained,  then  all  that  would  be  nec- 
essary to  accomplish  the  repeal  of  all  existing  ordinances  of  a  city 
would  be  the  adoption,  at  any  regular  meeting,  by  the  common  coun- 
cil, of  a  mere  verbal  and  general  motion  to  that  effect,  without  any 
reference  whatever  to  the  title,  number,  or  date  of  passage  of  the 
ordinance  or  ordinances  intended  to  be  repealed. 

In  the  case  of  Bills  v.  City  of  Goshen,  117  Ind.  221,  20  N.  E.  115, 
3  L.  R.  A.  261,  it  was  held  by  this  court  that  a  defect  in  an  ordinance 
could  not  be  cured  or  amended  by  means  of  a  motion  subsequently 
made  by  a  member  of  the  council,  and  put  to  a  vote  and  carried.  In 
Horr  &  B.  Mun.  Pol.  Ord.  §  61,  it  is  said:  "Express  repeals  can 
only  be  effected  by  an  act  of  equal  grade  with  that  by  which  the  or- 
dinance was  originally  put  in  operation.  No  part  or  feature  of  an  ex- 
isting ordinance  can  be  changed  by  a  mere  resolution  of  the  council, 
even  though  signed  by  the  mayor  and  recorded.  A  new  ordinance 
must  be  passed."  See,  also,  sections  63,  64,  same  authority.  In  Jones 
v.  McAlpine,  64  Ala.  511,  an  attempt  was  made,  by  a  motion,  to  raise 
or  change  the  license  fee  in  a  certain  ordinance  by  the  mayor  and 
board  of  aldermen  of  the  city  of  Talladega.  This  method  was  held 
to  be  ineffectual  in  its  results.  The  court  said :  "Until  an  ordinance 
had  been  adopted  by  the  mayor  and  aldermen  changing  the  ordinance 
of  May  9,  1887,  *  *  *  that  ordinance  remained  in  full  force, 
though  there  was  an  intention  to  change  it,  and  a  declaration  of  the 
will  of  the  board  that  it  should  be  changed." 

Considered,  then,  in  the  light  of  the  authorities  which  we  have  cited, 
and  the  manifest  reason  which  necessarily  underlies  and  sustains  the 
rule  which  they  assert,  the  conclusion  is  irresistibly  reached  that  the 
attempt  to  repeal  the  ordinance  which  embraced  the  series  of  rules  and 


ORDINANCES — MODE  OF  ENACTMENT  125 

regulations  in  question,  by  the  action  of  the  council  in  adopting  the 
motion  in  controversy,  was  ineffectual,  and  did  not  result  in  the 
repeal  or  abrogation  of  the  rule  under  consideration.  Having  reached 
this  conclusion,  the  inquiry  arises  as  to  the  effect  of  the  operation 
of  this  rule  upon  the  ordinance  upon  which  the  relators  fpund  their 
claims,  and  which  was  passed  and  adopted,  as  it  appears,  by  the  coun- 
cil, in  violation  of  its  provisions. 

It  is  said  in  Dill.  Mun.  Corp.  §  2888:  "After  a  meeting  of  the 
council  is  duly  convened,  the  mode  of  proceeding  is  regulated  by  the 
charter  or  constituent  act,  or  by  ordinances  passed  for  that  purpose, 
and  by  the  general  rules,  so  far  as  in  their  nature  are  applicable, 
which  govern  other  deliberative  and  legislative  bodies."  In  section 
47,  Horr  &  B.  Mun.  Pol.  Ord.,  it  is  said :  "The  usual  statutory  direc- 
tion is  that  every  ordinance  shall  be  read  at  three  different  meetings 
before  its  final  enactment.  The  direction  is  necessary,  as  a  safeguard 
against  too  hasty  legislation,  and  its  observance  mandatory.  If  neg- 
lected, the  ordinance  is  ab  initio  void."  In  Beach,  Pub.  Corp.  §  494, 
il  is  said:  "The  mode  of  enacting  the  ordinance  is  generally  pre- 
scribed in  the  charter  or  an  ordinance,  and  their  requirements  should 
be  strictly  complied  with.  So,  where  the  charter  prescribes  that  no 
by-law  shall  be  passed  unless  introduced  at  a  previous  meeting,  the 
provision  has  been  held  to  be  mandatory,  and  a  by-law  passed  in  vio- 
lation thereof  is  void." 

In  the  case  of  Horner  v.  Rowley,  51  Iowa,  620,  2  N.  W.  436,  the 
question  arose  as  to  the  validity  of  a  town  ordinance  authorizing  the 
issuance  of  a  license  for  the  sale  of  wine  and  beer.  It  appeared  that 
the  council  that  adopted  the  ordinance  involved  in  that  case  consisted 
of  seven  members.  The  statute  of  the  state  provided  "that  ordinances 
of  a  general  or  permanent  nature  shall  be  fully  and  distinctly  read 
on  three  different  days,  unless  three-fourths  of  the  council  shall  dis- 
pense with  the  rules."  Upon  a  motion  to  dispense  with  the  reading 
required  under  the  rule,  four  members  voted  in  the  affirmative,  and 
none  in  the  negative.  The  mayor  decided  the  motion  carried,  and 
the  ordinance  was  adopted.  The  court  said:  "As  four,  the  number 
who  voted  to  suspend  the  rule  and  pass  the  ordinance,  is  not  three- 
fourths  of  seven,  it  follows  that  the  ordinance  was  not  legally  en- 
acted. It  was  therefore  void,  and  no  valid  act  could  be  done  under 
its  provisions."  The  statutes  of  Ohio  relating  to  cities  require  tli.it 
ordinances  of  a  permanent  nature  shall  be  read  on  three  different 
days,  unless  three-fourths  of  the  nicml)crs  of  the  council  dispense  with 
the  rule.  In  the  aiJpcal  of  Campbell  v.  City  of  Cincinnati,  49  Ohio 
St.  463,  31  N.  E.  606,  it  was  held  that  this  provision  was  mandatory, 
and  that,  in  passing  several  ordinances  "in  a  lump,"  it  was  requisite 
to  suspend  the  rule  as  to  each,  in  order  to  render  its  final  adoption 
legal  and  valid.     ♦     *     * 

The  rule,  therefore,  as  stated  in  numerous  adjuflged  cases,  is  that 
the  mode  of  procedure  to  be  followed  in  the  enactment  of  ordinances, 


126  PROCEEDINGS  AND  ORDINANCES 

as  prescribed  by  statute,  must  be  strictly  observed.  Such  statutory 
powers  constitute  conditions  precedent,  and,  unless  the  ordinance  is 
adopted  in  compliance  with  the  conditions  and  directions  thus  pre- 
scribed, it  will  have  no  force.  17  Am.  &  Eng.  Enc.  Law,  238,  and 
cases  cited.  In  Clark  v.  Crane,  5  Mich.  151,  71  Am.  Dec.  776,  the 
supreme  court  laid  down  the  rule  that  'what  the  law  requires  to  be 
done  for  the  protection  of  the  taxpayer  is  mandatory,  and  cannot 
be  regarded  as  merely  directory.'  The  requirement  that  ordinances 
*  *  *  shall  be  fully  and  distinctly  read  upon  three  different  days 
is  designed  as  a  safeguard  against  rash  and  inconsiderate  legislation ; 
and,  being  in  a  great  degree  essential  to  the  protection  of  the  rights 
of  property,  it  should  be  deemed  a  mandatory  measure,  intended  as 
a  security  for  the  citizen."  The  case  of  State  v.  Priester,  43  Minn. 
373,  45  N.  W.  712,  asserts  the  same  rule,  and  the  reasons  therefor. 
This  court,  in  the  appeal  of  the  City  of  Logansport  v.  Crockett,  64 
Ind.  319,  held  that  section  3534,  Rev.  St.  1894  (section  3099,  Rev. 
St.  1881),  which  requires  that  on  the  adoption  or  passage  of  any 
by-laws,  ordinances,  or  resolutions,  the  yeas  and  nays  shall  be  taken 
and  entered  on  the  record,  was  mandatory,  and  that  a  noncompliance 
with  this  provision  rendered  the  adoption  of  the  ordinance  nugatory. 
See  Dill.  Mun.  Corp.  §  291. 

It  is  not  necessary  that  we  should  further  extend  the  consideration 
of  the  question,  or  refer  to  additional  authorities  to  show  that,  when 
the  legally  prescribed  method  of  procedure  in  the  enactment  of  an 
ordinance  is  neglected  or  violated,  the  latter  is  thereby  rendered 
invalid  and  of  no  force  or  effect.  This  doctrine  or  principle  seems 
to  be  firmly  settled  by  many  leading  authorities  and  decisions.  The 
inquiry  then  is :  Is  the  same  principle  applicable  when  the  procedure 
is  one  prescribed  by  an  ordinance  of  the  common  council  enacted 
under  the  exercise  of  the  power  granted  by  the  legislature?  There 
is  no  statute  in  this  state  that  embraces  or  contains  the  provisions  or 
requirements  in  regard  to  the  passage  of  an  ordinance  by  the  common 
council  that  are  contained  in  section  21  of  the  ordinance  in  question. 
This  right  to  regulate  such  proceedings  in  this  particular  respect  seems 
to  have  been  committed  by  the  legislature  to  the  common  council. 
Section  3533,  Rev.  St.  1894  (section  3098,  Rev.  St.  1881),  among  other 
things,  provides  that  "the  common  council  may  by  ordinance  pre- 
scribe such  rules  and  regulations,  in  addition  to  those  herein  con- 
tained, for  the  qualification  and  official  conduct  of  all  city  officers,  as 
they  may  deem  for  the  public  good,  and  which  shall  not  be  incon- 
sistent with  the  provisions  of  this  act."  By  section  3616,  Rev.  St. 
1894  (section  3155,  Rev.  St.  1881),  it  is  further  provided,  in  addi- 
tion to  the  powers  expressly  granted,  that  the  common  council  shall 
have  power  to  make  other  by-laws  and  ordinances  not  inconsistent 
with  the  laws  of  the  state,  and  necessary  to  carry  out  the  objects 
of  the  corporation,  etc.  By  these  provisions,  plenary  powers  are 
given  to  the  council  to  pass  and  adopt  ordinances  prescribing  rules 


OEDINANCES — MODE  OF  ENACTMENT  127 

I 

and  regulations,  not  inconsistent  with  law  for  its  government  and 
control,  when  duly  convened  and  acting  ofificially,  in  regard  to  its  pro- 
ceedings upon  the  passage  of  an  ordinance  or  otherwise. 

We  have  seen,  by  some  of  the  leading  authorities  which  we  have 
herein  cited,  that  when  the  mode  of  proceeding  upon  the  part  of  the 
council  in  the  adoption  of  an  ordinance  is  regulated  either  by  the  char- 
ter, or  an  ordinance  enacted  thereunder,  this  prescribed  mode  must 
be  strictly  followed.  Ordinances  of  a  city,  duly  enacted,  are  in  the 
nature  of  laws;  being  the  decree  or  will  of  the  common  council, 
which  body  is  vested  with  legislative  authority.  Public  policy  de- 
mands and  authority  sanctions  the  delegation  of  various  powers  of 
local  legislation  to  this  municipal  body.  The  ordinances  enacted  in 
the  exercise  of  these  powers  have,  within  the  corporate  limits  of  the 
city,  the  force  of  laws.  They  are  held  by  the  courts  to  be,  within 
these  limits,  as  binding  as  the  laws  of  the  state  and  general  govern- 
ment, and  are  enforced  in  a  similar  manner,  and  under  like  rules  of 
construction.  When  an  ordinance  is  duly  and  legally  passed,  under 
the  warrant  of  the  legislature,  it  is  in  force,  by  the  authority  of  the 
state.  Horr  &  B.  Mun.  Pol.  Ord.  §  2 ;  Beach,  Pub.  Corp.  §§  482,  486. 
A  by-law  or  ordinance  which  a  municipal  corporation  is  authorized 
to  adopt  is  as  binding  on  its  members  and  officers,  and  all  other  per- 
sons within  its  limits,  as  a  statute  of  the  legislature.  Heland  v. 
City  of  Lowell,  3  Allen  (Mass.)  407,  81  Am.  Dec.  670;  Pennsylvania 
Co.  V.  Stegemeier,  118  Ind.  305,  20  N.  E.  843,  10  Am.  St.  Rep.  136, 
and  authorities  cited;  Tied.  ]\Iun.  Corp.  §  153;  Dill.  Mun.  Corp.  §§ 
307,  308.  In  :\Iilne  v.  Davidson,  5  Mart.  N.  S.  (La.)  586,  16  Am.  Dec. 
189,  a  contract  entered  into  in  contravention  of  an  ordinance  of  the 
city  of  New  Orleans  was  held  to  be  void.  The  court  said :  "The  or- 
dinances of  a  corporation,  while  acting  within  the  powers  conferred 
upon  them  by  the  legislature,  have  as  binding  an  effect  on  the  par- 
ticular members  of  that  corporation  as  the  acts  of  the  general  as- 
sembly have  on  the  citizens  throughout  the  state,  and  it  is  as  nnich 
a  breach  of  duty  to  evade  or  violate  the  one  as  it  would  be  to  evade 
or  violate  the  other.  Tlic  moral  and  legal  obligation  to  obey  them 
is  the  same,  and  the  consequences  of  nonobedience  ought  to  be  the 
same." 

These  many  authorities,  which  substantially  enunciate  and  sustain 
the  proposition  that  a  municipal  ordinance  is  a  local  law  or  statute, 
upon  which  rests  both  the  moral  and  legal  obligation  to  obey  of  all 
persons  subject  thereto,  and  that  the  results  of  a  noncompliance  with 
the  mandatory  or  prohibitory  provisions  thereof  must,  in  reason,  be 
the  same,  in  effect,  as  follow  the  disobedience  or  disregard  of  an  act 
of  the  legislature  of  like  import,  warrant  the  conclusion  and  holding 
that  when  the  charter  law  of  a  city  docs  not  regulate  the  mode  of 
procedure  to  be  observed  upon  the  adoption  of  an  ordinance  by  the 
council,  but  has  committed  the  authority  or  power  so  to  do  to  that 
body,  which,   in  pursuance  thereof,   has   prescribed  by   ordinance  an 


12S  PROCEEDINGS   AND    ORDINANCES 

essential  and  salutary  rule,  mandatory  and  prohibitory  in  Its  provi- 
sions, as  is  the  one  under  consideration,  the  council  must  yield  to  it 
their  obedience,  and,  in  the  enactment  of  an  ordinance,  must  be  con- 
trolled thereby,  unless  suspended  in  the  manner  or  by  the  vote  pro- 
vided, and  that  the  consequences  of  refusing  to  substantially  comply 
with  its  provisions,  or  a  violation  of  its  inhibition,  must,  in  reason, 
be  the  same  as  the  noncompliance  with  or  a  violation  of  a  require- 
ment prescribed  by  the  statute.  The  section  of  the  ordinance  in  ques- 
tion prescribed,  substantially,  that  "all  ordinances  shall  be  read  three 
times  before  being  passed.  No  ordinance  shall  pass  or  be  read  the 
third  time  at  the  same  meeting  in  which  it  was  introduced."  The 
word  "all"  may  mean  "every,"  and  is  to  be  construed  in  this  connec- 
tion. Bloom  V.  Xenia,  32  Ohio  St.  461.  We  may  therefore  read  the 
rule  thus:  "Every  ordinance  shall  be  read,"  etc.  The  first  clause 
is  mandatory,  and  the  second  prohibitory. 

Such  a  rule  prescribed  for  the  government  of  legislative  bodies  is 
recognized  by  the  courts  as  a  salutary  one.  It  is  a  check  upon  what 
sometimes  might  prove  to  be  ill-advised,  prematurely  considered,  or 
pernicious  legislation.  If  a  common  council  were  permitted  to  will- 
fully ignore,  utterly  disobey,  and  violate  an  ordained  rule  of  this 
character,  injurious  results  to  the  inhabitants  of  the  corporation  might, 
and  possibly  would,  result.  It  is  therefore  the  duty  of  courts  to  re- 
quire a  strict  compliance  with  mandatory  provisions  of  the  law,  of 
the  character  and  purpose  of  the  one  in  question.  A  two-thirds  vote 
of  the  council  was  required,  to  suspend  the  rule.  This,  in  reason 
at  least,  must  be  construed  and  held  to  mean  not  less  than  two-thirds 
of  all  the  members  present  at  any  meeting  of  the  council.  Atkins  v. 
Phillips,  26  Fla.  281,  8  South.  429,  10  L.  R.  A.  158.  It  appears  from 
the  record  that  the  acts  of  the  council  antecedent  to  and  including 
the  final  passage  of  the  ordinance  creating  the  ward  in  controversy 
only  received  the  votes  of,  and  were  sanctioned  by,  three  of  the  six 
councilmen  present  at  the  meeting.  Three  cannot  be  held  to  be  two- 
thirds  of  six.  Hence,  in  no  manner,  or  upon  any  view  of  the  case, 
was  a  suspension  of  the  rule  effected. 

Viewed  then,  in  the  light  of  the  reason  and  logic  of  the  authorities 
herein  cited,  we  are  constrained  to  hold  and  adjudge  that,  the  ordi- 
nance having  been  passed  in  noncompliance  with  and  in  violation 
of  the  ordained  rule  in  controversy,  it  is  invalid  and  inoperative,  and 
that  the  action  of  the  council  based  thereon,  in  appointing  the  re- 
lators, is  likewise  void,  and  consequently  the  latter  cannot  suceessfuUy 
maintain  this  action.  City  of  Logansport  v.  hegg,  20  Ind.  315. 
*     *     *     Reversed. 


ESSENTIALS   OF   VALID   ORDINANCE  129 

V.  Essentials  of  Valid  Ordinance  ^^ 
1.  Must  Not  Be  Oppressive 


CITY  OF  CHICAGO  v.  GUNNING  SYSTEM. 

(Supreme  Court  of  Illinois,  1905.    214  III.  628,  73  N.  E.  1035,  70  L.  R.  A.  230.) 

Bill  by  the  Gunning  System  against  the  city  of  Chicago,  by  which 
it  is  sought  to  have  declared  void  two  ordinances  of  the  city  of  Chi- 
cago relating  to  billboards  and  for  an  injunction.  From  a  decree  for 
complainant,  which  was  affirmed  by  the  Appellate  Court  (114  111.  App. 
Z77),  defendant  appeals. 

Wilkin,  J.^^  *  *  *  It  is  claimed  by  appellee  that  under 
clause  17  of  section  1,  art.  5,  of  the  city  and  village  act  (Hurd's  Rev. 
St.  1899,  c.  24),  the  city  can  regulate  and  prevent  the  use  of  signs 
on  the  streets  and  public  places  of  the  city ;  that  this  is  a  specific  pro- 
vision relating  to  signs ;  and  that  the  power  thus  expressly  granted 
cannot  be  added  to  by  the  general  language  found  elsewhere  in  the 
act,  and  that  there  is  no  authority  conferred  by  statute  upon  munici- 
palities to  regulate  billboards  erected  upon  private  property.  We  can- 
not agree  with  this  contention,  but  are  of  the  opinion  that  there  is 
ample  power,  under  paragraphs  66  and  75  of  section  1,  art.  5,  of  the 
city  and  village  act  (Hurd's  Rev.  St.  1899,  p.  277,  c.  24),  to  authorize 
municipalities  to  pass  reasonable  ordinances  covering  said  subject. 
Paragraph  66  confers  upon  cities  power  "to  regulate  the  police  of  the 
city  or  village  and  pass  and  enforce  all  necessary  police  ordinances." 
*  *  *  Paragraph  75,  supra,  gives  cities  and  villages  power  "to 
declare  what  shall  be  a  nuisance,  and  to  abate  the  same,  and  to  impose 
fines  upon  parties  who  may  create,  continue  or  suffer  nuisances  to 
exist."  *  ♦  *  \Vc  think  it  clear  that  cither  under  paragraph  66 
or  7^,  supra,  full  power  and  authority  are  conferred  upon  cities, 
towns,  and  villages  to  regulate  the  construction  and  use  of  billl)oards 
within  their  corporate  limits,  provided  the  regulation  is  not  unreason- 
able. Moreover,  paragraph  78  of  section  1,  art.  5,  confers  upon 
cities  and  villages  the  right  "to  do  all  acts,  make  alT  regulations  which 
may  be  necessary  or  expedient  for  the  promotion  of  health  or  the  sup- 
pression of  disease."  No  argument  need  be  advanced  that  the  struc- 
tures described  in  the  bill  before  us  may  become  a  menace  to  the  safe- 
ty of  the  public,  and  hence  the  subject  of  control  and  regulation.  Tiicy 
may  be  erected  in  such  a  maimer  as  to  be  dangerous  to  the  piil)]ir  by 
falling  or  being  blown   down,  or  constructed  of  such   materials  and 

">  For  fliscnsslon  of  |trliiri[»lp.s,  see  T'oolcy,  Miin.  T'orj).  §  51. 

11  I';irl  of  tin-  opinion  is  oiiiittcMl  iind  tlu'  slatuiiUMif  of  iMf.ts  is  rewritten. 

(.'OOLEY  CA.SES  MUN.C. — 9 


130  PROCEEDINGS   AND    ORDINANCES 

dimensions  as  to  be  dangerous,  or  placed  upon  buildings  or  other 
structures  in  such  a  manner  as  to  endanger  the  life  and  limb  of  the 
citizen,  or  erected  within  the  fire  limits  in  such  proximity  to  buildings 
as  to  increase  the  danger  of  loss  by  fire,  or  so  as  to  obstruct  the  view 
of  railroad  crossings,  and  thus  endanger  life  by  accident,  or  have 
printed  or  displayed  upon  them  obscene  characters  tending  to  de- 
moralize and  injure  the  public  morals.  If  boards  are  erected  in  viola- 
tion of  any  of  these  public  rights  or  interests,  and  of  others  which 
might  be  mentioned,  there  is  ample  power  within  the  statute  to  regu- 
late them,  provided  such  regulations  are  reasonably  necessary  for  the 
protection  of  the  public  health,  morals,  or  safety.  Nor  will  the  mere 
fact  that  such  structures  are  placed  upon  private  property,  and  not  on 
the  public  streets,  protect  those  owning  or  using  them  against  such 
reasonable  regulations.  The  police  power  invades  individual  rights 
and  property  whenever  private  individuals,  by  the  use  of  their  private 
rights  or  private  property,  injure  the  public  in  any  of  the  above-men- 
tioned ways.  The  one  essential  and  universal  limitation  upon  the  ex- 
ercise of  the  police  power  is,  however,  that  the  regulation  shall  be 
reasonably  necessary  and  reasonably  exercised. 

The  question  therefore  remains  to  be  considered  whether  the  mu- 
nicipal authorities  have  in  this  case  reasonably  exercised  the  power 
vested  in  them ;  in  other  words,  whether  the  ordinance  of  June  29, 
1900  (the  only  one  here  in  question),  is  reasonable.  The  first  four 
sections  of  the  ordinance  relate  to  signs  and  billboards  to  be  thereafter 
erected.  Section  1  provides  that  they  shall  be  constructed  of  sheet  or 
galvanized  iron,  or  some  equally  noncombustible  material,  shall  not 
exceed  100  square  feet  in  area,  and  shall  not  be  located  nearer  than  25 
feet  back  of  the  front  line  of  the  lot.  Section  2  provides  that  they 
shall  not  exceed  10  feet  in  height  above  the  level  of  the  adjoining 
streets,  and  the  base  shall  be  at  least  3  feet  above  the  level  of  the 
street,  and  in  case  the  grade  of  adjoining  streets  has  not  been  estab- 
lished they  shall  not  exceed  10  feet  above  the  surface  of  the  ground. 
Section  3  provides  that  one  board  shall  not  be  erected  within  five  feet 
of  any  other  board,  and  that  each  shall  have  independent  stipports. 
All  of  these  provisions  are  general  in  their  terms,  and  apply  alike  to 
boards  erected  in  every  part  of  the  city. 

In  a  great  city  like  Chicago  the  court  will  take  judicial  notice  that 
billboards  are  of  various  kinds,  generally  made  out  of  a  variety  of 
materials,  and  erected  in  many  different  localities;  some  in  the  thick- 
ly settled  and  business  districts,  where  the  erection  of  wooden  build- 
ings may  properly  be  prohibited,  or  in  the  vicinity  of  electric  wires, 
where  more  stringent  regulations  are  reasonably  necessary  to  protect 
the  public  safety ;  or  they  may  be  in  the  remote  and  more  thinly  set- 
tled territory  of  the  city,  where  such  stringent  precautions  are  not 
necessary,  while  others  may  be  on  vacant  tracts  of  land  far  removed 
from  other  structures  of  every  kind.  It  must  be  apparent  to  all  rea- 
sonable minds  that  provisions   which   are  necessary  in  one  of  such 


ESSENTIALS   OF   VALID   ORDINANCE  131 

cases  would  be  wholly  unnecessary  and  unreasonable  in  the  others, 
and  that  a  provision  might  be  a  reasonable  police  regulation  in  the 
one  case  and  in  one  locality  which  would  be  wholly  unreasonable  un- 
der other  circumstances  in  another  locality.  This  ordinance  is,  how- 
ever, without  qualification  or  limitation,  applicable  to  signs  and  bill- 
boards alike  in  all  portions  of  the  great  city  of  Chicago ;  applicable 
alike  to  every  portion  of  its  extended  territory.  We  do  not  hold  that 
this  ordinance  is  so  unreasonable  as  to  be  void  if  it  were  limited  to 
particular  districts  of  the  city.  Nor  do  we  question  the  doctrine  an- 
nounced in  City  of  Mt.  Carmel  v.  Shaw,  155  111.  Z7 ,  39  N.  E.  584,  27 
L.  R.  A.  580,  46  Am.  St.  Rep.  311,  and  other  cases,  holding  that, 
"where  the  municipal  authorities  are  acting  within  their  well-recog- 
nized powers,  or  are  exercising  a  discretionary  power,  a  court  of 
equity  has  no  jurisdiction  to  interfere  unless  the  power  or  discretion 
is  being  manifestly  abused  to  the  oppression  of  the  citizen."  Where, 
however,  as  here,  the  attempt  is  to  prohibit  the  owner  of  a  lot  in  a 
remote,  sparsely  settled  part  of  the  city,  or  his  lessee,  from  erecting 
a  sign  or  billboard  thereon  except  of  required  material — "sheet  or 
galvanized  iron,"  etc. — we  think  it  does  beconie  unreasonable  and 
oppressive. 

Section  4  provides  that  no  sign  or  billboard  shall  be  erected  upon 
any  boulevard  or  pleasure  drive,  or  in  any  street  where  three-fourths 
of  the  buildings  in  such  street  are  devoted  to  residence  purposes,  with- 
out the  consent,  in  writing,  of  at  least  three-fourths  of  the  residents 
and  property  owners  on  both  sides  of  the  street  in  the  block  where  it 
is  desired  to  erect  such  board.  There  is  no  evidence  in  the  record 
upon  which  to  base  the  reasonableness  of  this  provision.  It  seems  to 
be  an  arbitrary  restriction  on  the  part  of  the  city,  depriving  an  in- 
dividual property  owner  of  the  use  of  his  property  as  he  may  choose, 
without  any  showing  that  such  use  would  be  injurious  to  others  in 
the  same  vicinity.  On  the  evidence  before  us  that  section  must  be 
held  unreasonable  and  void. 

Section  5  provides  tliat  all  signs  and  billboards  erected  before  the 
passage  of  the  ordinance  which  shall  exceed  100  square  feet  in  area 
or  are  of  a  greater  height  than  10  feet  above  the  surface  of  the 
ground  shall  pay  an  annual  license  of  50  cents  per  square  foot,  and 
in  default  of  such  payment  shall  be  torn  down.  The  evidence  shows 
that  under  this  section  appellee  would  be  required  to  pay  to  the  city 
$210,aX)  per  year,  while  its  gross  income  is  but  $120,000  per  year. 
All  of  these  signs  and  billboards  upcMi  which  this  license  would  have 
to  be  paid  were  erected  by  api)ellee  under  the  ordinances  of  the  city 
as  they  existed  at  the  time  they  were  built,  and  the  city,  in  some  in- 
stances, received  a  license  fee  for  the  privilege  of  erecting  the  same. 
This  provision  of  the  ordinance  i^s  not  only  unreasonable  in  its  terms, 
but  is  prohibitive  of  appellee's  business,  and,  if  enforced,  appellee 
would  be  required  to  pay  more  than  one  and  one-half  times  the 
amount  of  its  gross  income,  or  have  its  property  destroyed.     An  ordi- 


132  PROCEEDINGS  AND  ORDINANCES 

nance  which  is  unreasonable,  unjust,  and  oppressive  will  be  held  by 
the  courts  to  be  void.  Hawes  v.  City  of  Chicago,  158  111.  653,  42 
N.  E.  Z7Z,  30  L.  R.  A.  225. 

The  purpose  of  sections  4  and  5  seems  to  be  mainly  sentimental, 
and  to  prevent  sights  which  may  be  offensive  to  the  aesthetic  sensibili- 
ties of  certain  individuals  residing  in  or  passing  through  the  vicinity 
of  the  billboards.  The  extreme  restrictions  placed  on  the  erection  and 
maintenance  of  such  boards,  and  the  license  fee  placed  thereon,  in- 
dicate that  these  sections  were  intended  to  be  prohibitive,  rather  than 
regulative,  and  are,  in  our  judgment,  unreasonable. 

Our  conclusion  therefore  is  that  the  decree  of  the  superior  court 
was  right,  and  properly  affirmed  by  the  Appellate  Court,  not  for  want 
of  power  in  the  city  council  of  the  city  of  Chicago  to  pass  an  ordinance 
reasonably  regulating  the  erection  and  maintenance  of  billboards,  but 
because,  under  the  allegations  of  the  bill  and  the  proofs  made  by  com- 
plainant below,  the  ordinance  here  in  question  is  unreasonable.  De- 
cree affirmed. 


2.  Must  Not  Contravene  A  Common  Right 


STATE  V.  RAY. 

(Supreme  Court  of  North  CaroUna,  1902.     131  N.  C.  814,  42  S.  E.  960,  60  L. 

R.  A.  634,  92  Am.  St.  Rep.  795.) 

J.  D.  Ray  was  convicted  of  violating  an  ordinance,  and  appeals. 

FuRCHKS,  C.  J.  The  defendant  is  the  owner  of  a  dry  goods  and 
grocery  store  (not  of  liquors)  in  the  town  of  Scotland  Neck,  Halifax 
county.  Scotland  Neck  is  an  incorporated  town,  and  on  the  4th  of 
July,  1902,  the  commissioners  of  said  town  passed  this  ordinance :  "It 
shall  be  unlawful  for  barrooms,  groceries,  dry  goods  stores  and  other 
places  where  merchandise  is  bought  and  sold  (except  drug  stores  for 
the  sale  of  drugs  and  medicines  only)  to  keep  open  later  than  7 :30 
o'clock  p.  m.  except  Saturdays.  Any  one  violating  this  ordinance  shall 
be  fined  five  dollars  for  each  and  every  violation."  The  defendant 
admits  that  he  is  the  owner  of  a  dry  goods  and  grocery  store  in  the 
town  of  Scotland  Neck,  and  that  he  has  kept  it  open  later  than  7:30 
p.  m.  since  the  7th  day  of  July,  1902,  the  date  at  which  said  ordinance 
was  to  go  into  effect,  but  pleads  "Not  guilty,"  and  a  special  verdict 
was  returned,  finding  the  facts  as  above. 

It  is  admitted  that  the  charter  of  said  town  gives  no  special  authority 
for  the  passage  of  such  an  ordinance,  and  that  the  commissioners  had 
no  authority  for  the  passage  of  said  ordinance,  except  the  general 
powers  incident  to  municipal  corporations.  This  presents  squarely  the 
question  of  corporate  power  to  pass  and  enforce  such  an  ordinance 


ESSENTIALS   OF   VALID   ORDINANCE  133 

without  any  legislative  authority  to  do  so,  except  the  fact  that  it  is 
a  chartered  municipality.  It  is  therefore  not  necessary  that  we  should 
discuss  the  power  of  the  legislature  to  pass  such  an  act,  or  to  au- 
thorize a  municipality  to  pass  such  an  ordinance,  and  we  do  not  enter 
into  the  consideration  of  that  matter. 

It  must  be  admitted  that  the  enforcement  of  this  ordinance  would 
be  to  deprive  the  defendant  of  his  natural  right, — would  be  to  inter- 
fere with  the  free  use  and  enjoyment  of  his  property,  used  in  such  a 
way  as  not  to  interfere  with  the  rights  of  others.  It  is  not  shown,  nor 
is  it  suggested,  that  defendant's  keeping  his  store  open  after  7  :30  in- 
terfered with  the  rights  of  any  one  else.  It  was  said  that  the  other 
merchants  in  Scotland  Neck  were  willing  to  close  their  stores  at  7  :30, 
but  the  defendant  was  not,  and  the  ordinance  was  passed  to  compel 
him  to  do  so,  for  the  reason  that  if  he  kept  open  the  others  would  be 
compelled  to  do  so,  or  to  give  the  defendant  the  benefit  of  the  trade 
of  the  town  after  that  time.  But  did  this  give  the  commissioners  the 
right  to  close  the  defendant's  store? 

It  would  seem  that  no  legislative  power  exists,  under  our  form  of 
government  and  our  ideas  of  personal  liberty,  as  to  allow  such  inter- 
ference with  one's  rights  of  ownership  and  dominion  over  his  own 
property,  except  such  interference  be  exercised  for  the  protection  and 
benefit  of  the  public.  \\'hen  such  interference  is  authorized,  it  is  un- 
der the  doctrine  of  eminent  domain,  or  what  is  known  as  the  "police 
power  of  the  government."  The  attempted  exercise  of  the  power  in 
this  instance  is  clearly  not  under  the  doctrine  of  eminent  domain,  but 
it  is  said  to  be  under  the  police  power  of  the  government.  If  the  state 
could  exercise  such  power  (and  we  do  not  say  it  could),  can  a  munici- 
pal corporation  do  so  without  express  authority  from  the  state?  The 
general  rule  is  that  a  municipal  corporation  can  only  exercise  such 
powers  as  are  expressly  given  in  its  charter,  or  such  as  are  necessarily 
implied  by  those  expressly  given.  This  doctrine  is  well  expressed  by- 
1  Dill.  Mun.  Corp.  §  89,  which  is  copied  by  Justice  Avery  in  State  v. 
Webber,  107  N.  C.  962,  12  S.  E.  598,  22  Am.  St.  Rep.  920,  and  is 
approved  and  adopted  by  this  court  in  thai  case:  "It  is  a  general  and 
undisputed  proposition  of  law  that  a  municipal  corporation  possesses 
and  can  exercise  the  following  powers,  and  no  others :  First,  those 
granted  in  express  words ;  second,  those  necessarily  or  fairly  implied ; 
third,  those  essential  to  the  declared  objects  and  jnirposes  of  the  cor- 
poration,— not  simj)ly  convenient,  but  indispensable.  Any  fair,  rea- 
sonable doubt  concerning  the  exercise  is  resolved  by  the  courts  against 
the  corporation,  and  the  jiower  is  denied. 

The  same  doctrine  is  probably  more  pointedly  staled,  as  applicable 
to  the  case  now  under  consideration,  in  vStale  v.  Thomas,  118  N.  C. 
1221,  24  S.  E.  535,  as  follows:  "An  ordinance,  says  Dillon  (1  Mun. 
Corp.  §  325),  cannot  legally  be  made,  which  contravenes  a  common 
right,  unless  the  power  to  do  so  be  plainly  conferred  by  a  valid  and 
competent  legislative  grant;    and,  in  cases  relating  to  such  rights,  au- 


134  PROCEEDINGS    AND    ORDINANCES 

thority  to  regulate,  conferred  upon  towns  of  limited  powers,  has  been 
held  not  necessarily  to  include  the  power  to  prohibit.  If  the  general 
power  to  pass  by-laws,  intended  for  local  government  merely,  carries 
with  it,  by  implication,  the  authority  to  restrict  the  use  of  private  prop- 
erty by  prescribing  the  hours  when  a  person  shall  be  permitted  to 
occupy  his  own  house,  then  cities  and  towns  need  nothing  more  than 
the  enactment  of  a  law  creating  them,  with  the  incidental  grant  em- 
bodied in  section  3799  of  the  Code,  to  give  them  equal  authority  with 
the  legislature  itself  to  restrict  and  regulate  the  rights  of  personal 
liberty  and  private  property  within  the  limits  of  the  municipality.  No 
such  latitudinarian  construction  was  intended  by  the  legislature  to 
be  given  to  the  statute,  and  its  attempted  exercise  was  therefore  un- 
lawful." It  seems  to  us  that  these  authorities  settle  the  question,  and 
plainly  show  that  this  ordiiiance  was  unlawful  and  cannot  be  enforced. 

It  is  said  that  towns  are  constantly  exercising  such  power  over  bar- 
rooms where  liquors  are  sold.  This  power,  so  far  as  our  investigation 
goes,  is  expressly  given  in  the  charters.  But  if  there  is  any  case  where 
it  is  not,  it  must  be  understood  that  it  stands  on  a  very  different  foot- 
ing to  the  sale  of  dry  goods  and  family  groceries.  Liquor  itself  is 
regarded  as  an  evil, — an  enemy  of  civilization  and  of  good  govern- 
ment. Bailey  v.  City  of  Raleigh,  130  N.  C.  209,  41  S.  E.  281,  58  L. 
R.  A.  178;  State  v.  Barringer,  110  N.  C.  525,  14  S.  E.  781.  Its  sale 
without  a  license  is  condemned  and  prohibited  by  law,  and  the  regu- 
lations closing  such  shops  might  well  be  put  upon  the  implied  power, 
as  being  for  the  public  good.  But  however  that  may  be,  that  is  not 
the  question  before  the  court,  and  what  has  been  said  to  the  sale  of 
liquors  has  only  been  said  to  meet  an  argument  of  the  state. 

It  is  also  said  that  the  state  of  California  has  exercised  such  power 
without  express  legislation,  and  that  the  supreme  court  of  the  United 
States  affirmed  the  judgment  of  the  California  court.  But  when  those 
rases  are  examined,  it  will  be  found  that  they  were  cases  where  the 
business  of  ironing  was  carried  on  all  night  in  a  thickly  settled  portion 
of  the  city  of  San  Francisco,  consisting  of  old  wooden  buildings  near 
the  Sound,  where  the  wind  usually  blew  hard,  which  made  it  very 
dangerous  to  carry  on  such  work  at  late  hours  of  the  night,  on  account 
of  fire.  And  the  opinions  rest  upon  the  ground  that  it  was  for  the 
public  good — the  protection  of  the  public  from  the  danger  of  fire — 
that  the  city  was  allowed  to  prevent  such  persons  from  carrying  on 
such  work  at  such  late  hours  of  the  night.  But  the  supreme  court  of 
the  United  States  only  affirmed  the  ruling  of  the  state  court,  which  is 
the  rule  of  that  court  where  there  is  no  federal  question  involved.  So 
it  amounts  to  no  more  than  a  decision  of  the  supreme  court  of  Cali- 
fornia against  the  repeated  decisions  of  our  own  supreme  court.  And 
were  we  to  admit  that  the  distinction  does  not  exist  between  the  Cali- 
fornia case  and  this  case,  which  we  have  pointed  out,  the  question 
then  is,  shall  we  adhere  to  our  own  decisions,  when  we  are  not  able 
to  see  any  error  in  them,  or  shall  be  adopt  the  opinion  of  the  court  of 


ESSENTIALS   OF   VALID   ORDINANCE  135 

California?  We  prefer  to  follow  our  own  decisions,  and  are  of  the 
opinion  that  the  corporate  authorities  of  Scotland  Neck  were  not  au- 
thorized to  pass  the  ordinance  under  consideration,  and  it  is  void. 

There  is  error,  and  under  the  special  verdict  the  defendant  was  en- 
titled to  an  acquittal  and  discharge.  The  judgment  of  the  court  below 
is  reversed.^* 


3.  Must  Not  Bt  Unreasonable 


STATE  V.  BERING. 
In  re  GARRABAD. 

(Supreme  Court  of  Wisconsin,  1893.    84  Wis.  585,  54  N.  W.  1104,  19  L.  R.  A. 

858,  36  Am.  St.  Rep.  948.) 

This  is  a  proceeding  by  certiorari  to  review  the  decision  of  C.  L. 
Bering,  court  commissioner,  in  the  matter  of  his  refusal  to  discharge 
the  petitioner,  Joseph  Garrabad,  from  custody,  and  remanding  him 
to  the  imprisonment  of  which  he  complains.  It  appears  from  the 
return  of  the  sheriff  to  the  writ  of  habeas  corpus  issued  by  the  com- 
missioner that  on  the  27th  day  of  February,  1893,  the  petitioner  was 
placed  in  his  custody,  and  was  held  therein,  under  and  by  virtue  of 
an  execution  or  so-called  "commitment,"  reciting  that  the  city  of 
Portage  had  recovered  a  judgment  before  said  justice  against  the 
petitioner  for  the  sum  of  $5,  together  with  $13.85  costs  of  suit,  for 
the  violation  of  an  ordinance  of  said  city.  The  ordinance  in  question 
provides  that  "it  shall  be  unlawful  for  any  person  or  persons,  society, 
association,  or  organization,  under  whatsoever  name,  to  march  or 
parade  over  or  upon"  certain  streets  (therein  named)  in  the  city  of 
Portage,  "shouting,  singing,  or  beating  drums  or  tambourines,  or  play- 
ing upon  any  other  musical  instrument  or  instruments,  for  the  pur- 
pose of  advertising  or  attracting  the  attention  of  the  public,  or  to  the 
disturbance  of  the  j)ublic  peace  or  quiet,  without  first  having  obtained 
a  permission  to  so  march  or  parade,  signed  by  the  mayor  of  said  city : 
*  *  *  Provided,  that  this  section  shall  not  apply  to  funerals,  fire 
companies,  nor  regularly  organized  companies  of  the  state  militia: 
and  provided,  further,  that  permission  to  march  or  parade  shall  at  no 
time  be  refused  to  any  political  party  having  a  regular  stale  or- 
ganization." The  petitioner  demurred  to  the  return,  and  the  commis- 
.<^ioner  overruled  the  denuirrcr,  and  ordered  that  he  be  remanded 
to  the  custody  of  the  sheriff,  to  be  confined  in  ilie  countyjail  of  said 
county,  according  to  tiic  terms  of  said  execution.'^ 

12TI10  (lIsscntinK  opinion  of  ri!irl<,  .T.,  Ih  oniiltod. 
J^Tlic  stjitcnif-nt   nf  f.-icfs   Is  rfwriltcn. 


136  PROCEEDINGS   AND    ORDINANCES 

PiNNElY,  J.  The  city  charter  of  the  city  of  Portage  (Laws  1882, 
c.  132,  §  31)  confers  upon  the  common  council  of  the  city  power  to 
pass  ordinances  and  by-laws  on  certain  subjects,  under  and  by  virtue 
of  the  delegation  of  the  police  powers  of  the  state  to  the  common 
council  and  city  officers  for  the  government  of  the  city,  and  the  pres- 
ervation of  order  and  public  safety.  In  respect  to  such  ordinances  or 
by-laws  it  has  long  been  the  established  doctrine  that  they  must  be 
reasonable,  not  inconsistent  with  the  charter  nor  with  any  statute, 
nor  with  the  general  principles  of  the  common  law  of  the  land,  par- 
ticularly those  having  relation  to  the  liberty  of  the  subject  or  the  rights 
of  private  property.  Dill.  Mun.  Corp.  §  319,  and  cases  cited  in  notes. 
The  particular  objections  urged  to  the  validity  of  the  ordinance  in 
question  fall  within  the  scope  of  the  fourteenth  amendment  to  the 
constitution  of  the  United  States,  which  provides  that  "no  state  shall 
make  or  enforce  any  law  which  shall  abridge  the  privileges  or  im- 
munities of  citizens  of  the  United  States,  nor  shall  any  state  deprive 
any  person  of  life,  liberty,  or  property,  without  due  process  of  law, 
nor  deny  to  any  person  within  its  jurisdiction  the  equal  protection  of 
the  laws."  These  provisions  apply  equally  to  all  persons  within  the 
territorial  jurisdiction  of  the  United  States,  without  regard  to  any 
differences  of  color  or  nationality ;  and  the  equal  protection  of  the 
laws  is  a  pledge,  it  is  held,  "of  the  protection  of  equal  laws."  Yick 
Wo  v.  Hopkins,  118  U.  S.  369,  6  Sup.  Ct.  1064,  30  L.  Ed.  220. 

It  is  objected  that  the  ordinance  is  void  on  its  face,  by  reason  of  its 
operating  unequally  and  creating  an  unjust  and  illegal  discrimination, 
not  only  (1)  by  the  express  terms  of  the  ordinance  itself,  but  (2)  it 
is  so  framed  as  to  punish  the  petitioner  for  what  is  permitted  to  oth- 
ers as  lawful,  without  any  distinction  of  circumstances,  whereby  an 
unjust  and  illegal  discrimination  occurs  in  its  execution,  and  which, 
though  not  made  by  the  ordinance  in  express  terms,  is  made  possible 
by  it;  (3)  in  that  it  vests  in  the  mayor,  or  other  officers  of  the  city 
named  in  it,  power  to  arbitrarily  deny  persons  and  other  societies 
or  organizations  the  right  secured  by  it  to  others  to  march  and  pa- 
rade on  the  streets  named.  The  general  subject  and  scope  of  the 
ordinance  is  marching  or  parading  by  "any  person  or  persons,  society, 
association,  or  organization"  over  the  streets  named,  "shouting,  sing- 
ing, or  beating  drums  or  tambourines,  or  playing  upon  any  musical 
instrument  or  instruments,  for  the  purpose  of  advertising  or  attract- 
ing the  attention  of  the  public,  or  to  the  disturbance  of  the  public 
peace  or  quiet,"  without  having  obtained  permission  as  prescribed  in 
the  ordinance.  It  provides,  among  other  things,  that  the  ordinance 
shall  not  apply  to  fire  companies,  nor  to  regularly  organized  com- 
panies of  the  state  militia,  and  that  permission  to  march  or  parade 
shall  at  no  time  be  refused  to  any  political  party  having  a  regular 
state  organization.  The  permission,  it  will  be  seen,  is  required  ab- 
solutely to  be  granted  to  political  parties  having  a  regular  state  or- 
ganization,   so  they   are   practically    excepted   out  of   the   ordinance. 


ESSENTIALS    OF   VALID   ORDINANCE  137 

Whether  permission  shall  be  granted  to  any  other  society,  civic,  reli- 
gious, or  otherwise,  depends,  not  upon  the  character  of  the  organiza- 
tion, or  upon  the  particular  circumstances  of  the  case,  but  upon  the 
arbitrary  discretion  of  the  mayor  or  other  officers  named  in  the  ordi- 
nance, acting  in  his  absence. 

It  is  therefore  argued  that,  as  between  different  persons,  societies, 
associations,  or  organizations,  the  ordinance  operates  unequally,  and 
creates  unjust  and  illegal  discriminations  by  its  express  terms,  and 
makes  such  discriminations  not  only  possible,  but  necessary  in  its 
administration,  and  therefore  that  the  ordinance  is  void  upon  com- 
mon-law principles,  as  heretofore  recognized  and  administered  in  the 
courts  of  the  country.  The  rights  of  persons,  societies,  and  organiza- 
tions to  parade  and  have  processions  on  the  streets  with  music,  banners, 
songs,  and  shouting,  is  a  well-established  right,  and,  indeed,  the  ordi- 
nance upon  its  face  recognizes  to  a  certain  extent  the  legality  of  such 
processions  and  parades,  and  provides  for  permitting  them,  in  the  dis- 
cretion of  the  mayor,  in  all  cases  except  those  named,  and  as  to  those 
the  right  is  practically  secured.  The  ordinance,  as  framed,  and  as 
it  is  to  be  executed  under  the  arbitrary  discretion  of  the  mayor  or 
other  officer,  is  clearly  an  abridgment  of  the  rights  of  the  people; 
and  in  many  cases  it  practically  prevents  those  public  demonstrations 
that  are  the  most  natural  product  of  common  aims  and  kindred  pur- 
poses. "It  discourages  united  effort  to  attract  public  attention  and 
challenge  public  examination   and  criticism  by  associated  purposes.'* 

Anderson  v.  City  of  Wellington,  40  Kan.  173,  19  Pac.  719,  2  L.  R. 
A.  110,  10  Am.  St.  Rep.  175,  contains  a  careful  discussion  and  exam- 
ination of  a  similar  ordinance,  which  was  there  held  to  be  void  as 
contravening  common  right.  In  Re  Frazee,  63  Mich.  396,  30  N.  W. 
72,  6  Am.  St.  Rep.  310,  after  full  discussion  by  Campbell,  C.  J.,  a 
similar  ordinance  was  also  held  void,  and  that  it  is  not  in  the  power 
of  the  legislature  to  deprive  any  of  the  people  of  the  enjoyment  of 
equal  privileges  under  the  law,  or  to  give  cities  any  tyrannical  pow- 
ers; that  charters,  laws,  and  regulations,  to  be  valid,  must  be  capa- 
ble of  construction,  and  must  be  construed,  in  conformity  to  consti- 
tutional princi])les,  and  in  harmony  with  the  general  laws  of  the  land ; 
and  that  any  by-law  which  violates  any  of  the  recognized  principles 
of  lawful  and  c(|ual  rights  is  necessarily  void  so  far  as  it  does  so, 
and  void  entirely  if  it  cannot  be  reasonably  applied  according  to  its 
terms ;  and  no  grant  of  absolute  discretion  to  suppress  lawful  action 
can  be  sustained  at  all ;  that  it  is  a  fundamental  condition  of  all 
liberty,  and  necessary  to  civil  society,  that  men  must  exercise  their 
rights  in  harmony  with,  and  yield  to  such  restrictions  as  arc  neces- 
sary to  produce,  peace  and  good  order ;  and  it  is  not  competent  to 
make  any  exceptions  for  or  against  the  so-called  "Salvation  Army" 
because  of  its  theories  concerning  practical  wf)rk  ;  that  in  law  it  has 
the  same  right,  and  is  subject  to  the  same  rcstricti<jns,  in  its  public 
demonstrations,  as   any  secular   body  or  society    which   uses  similar 


138  PROCEEDINGS    AND    ORDINANCES 

means  for  drawing  attention  or  creating  interest.  Hence  the  by-law 
there  in  question,  because  it  suppressed  what  was  in  general  perfectly 
lawful,  and  left  the  power  of  permitting  or  restraining  processions 
and  their  courses  to  an  unlawful  official  discretion,  was  held  void ; 
and  that  any  regulation,  to  be  valid,  must  be  by  permanent  legal  pro- 
visions, operating  generally  and  impartially. 

The  return  of  the  sheriff  utterly  fails  to  show  of  what  specific 
oft'ense  the  petitioner  was  convicted ;  that  is  to  say,  in  what  particular 
respect  he  violated  the  ordinance.  We  may  infer,  however,  for  the 
purpose  of  argument  and  illustration,  from  the  fact  that  the  petition 
for  the  writ  addressed  to  this  court  states  that  the  petitioner  is  a 
member  of  the  Salvation  Army,  that  he  was  convicted  of  parading  the 
streets  in  that  capacity.  It  cannot  be  maintained  that  any  person 
or  persons  or  society  have  any  right  for  religious  purposes  or  as  reli- 
gious bodies  to  use  the  streets  for  purposes  of  public  parade  because 
the  purpose  in  view  is  purely  religious,  and  not  secular,  but  they  cer- 
tainly have  the  same  right  to  equal  protection  of  the  laws  as  secular 
organizations.  The  objections  urged  against  this  ordinance  are,  we 
think,  fatal  to  any  conviction  which  might  take  place  under  it  by 
reason  of  its  unreasonable  and  unjust  discriminations,  and  of  the  ar- 
bitrary power  conferred  upon  the  mayor  or  other  officer  of  the  city 
to  make  others  in  its  administration  and  execution;  so  that  it  is  im- 
possible to  sustain  the  conviction  in  any  aspect  in  which  the  question 
may  be  viewed. 

A  careful  examination  of  the  decisions  in  various  states,  and  the 
considerations  upon  which  they  are  founded,  is  not  material  to  the 
determination  of  the  case,  for  the  whole  subject  is  governed  and  con- 
trolled by  the  provisions  of  the  fourteenth  amendment  to  the  consti- 
tution of  the  United  States,  already  referred  to.  In  construing  and 
applying  this  amendment,  the  supreme  court  of  the  United  States 
have  said  in  Barbier  v.  Connolly,  113  U.  S.  27,  5  Sup.  Ct.  357,  28 
L.  Ed.  923,  that  it  "undoubtedly  intended  not  only  that  there  should 
be  no  arbitrary  deprivation  of  life  or  liberty,  or  arbitrary  spoliation 
of  property,  but  that  equal  protection  and  security  should  be  given 
to  all  under  like  circumstances  in  the  enjoyment  of  their  personal  and 
civil  rights ;  that  all  persons  should  be  equally  entitled  to  pursue  their 
happiness,  and  acquire  and  enjoy  property;  that  they  should  have 
like  access  to  the  courts  of  the  country  for  the  protection  of  their 
persons  and  property,  the  prevention  and  redress  of  wrongs,  and  the 
enforcement  of  contracts;  that  no  impediment  should  be  interposed 
to  the  pursuits  of  any  one  except  as  applied  to  the  same  pursuits  by 
others  under  like  circumstances;  that  no  greater  burdens  should  be 
laid  upon  one  than  are  laid  upon  others  in  the  same  calling  and 
condition.  *  *  *  Class  legislation  discriminating  against  some  and 
favoring  others  is  prohibited,  but  legislation  which,  in  carrying  out 
a  public  purpose,   is  limited  in  its   application  if   within  the  sphere 


ESSENTIALS   OF   VALID    ORDINANCE  139 

of  its  operation  it  affects  alike  all  persons  similarly  situated,  is  not 
within  the  amendment." 

The  entire  subject  underwent  careful  examination  in  the  case  of 
Yick  Wo  V.  Hopkins,  118  U.  S.  356,  6  Sup.  Ct.  1064,  30  L.  Ed.  220, 
where  the  subject  of  city  ordinances  and  the  principles  regulating 
their  validity  were  considered.  The  objections  to  the  validity  of  the 
ordinances  in  that  case  were,  in  substance,  the  same  that  are  urged 
in  this,  and  the  ordinances  in  question  were  held  void.  The  objections 
urged  in  the  case  of  City  of  Baltimore  v.  Radecke,  49  Md.  217,  were 
also,  in  substance,  the  same,  for  the  ordinance  in  that  case  upon  its 
face  committed  to  the  unrestrained  will  of  a  single  public  officer  the 
power  to  determine  the  rights  of  parties  under  it,  when  there  was 
nothing  in  the  ordinance  to  guide  or  control  his  action,  and  it  was 
held  void  because  "it  lays  down  no  rules  by  which  its  impartial  exe- 
cution can  be  secured,  or  partiality  and  oppression  prevented,"  and 
that  "when  we  remember  that  action  or  nonaction  may  proceed  from 
enmity  or  prejudice,  from  partisan  zeal  or  animosity,  from  favoritism 
and  other  improper  influences  and  motives  easy  of  concealment  and 
difficult  to  be  detected  and  exposed,  it  becomes  unnecessary  to  sug- 
gest or  to  comment  upon  the  injustice  capable  of  being  wrought  under 
cover  of  such  a  power,  for  that  becomes  apparent  to  every  one  who 
gives  to  the  subject  a  moment's  consideration.  In  fact,  an  ordinance 
which  clothes  a  single  individual  with  such  power  hardly  falls  within 
the  domain  of  law,  and  we  are  constrained  to  pronounce  it  inopera- 
tive and  void." 

The  doctrine  of  this  case  was  approved  in  Yick  Wo  v.  Hopkins, 
supra,  and  the  court  in  the  latter  case  observed :  "We  are  not  obliged 
to  reason  from  the  probable  to  the  actual,  and  pass  upon  the  validity 
of  the  ordinances  complained  of,  as  tried  merely  by  the  opportunities 
which  their  terms  afford,  of  unef|ual  and  unjust  discrimination  in  their 
administration  ;"  and  proceeded  to  show  that  in  the  case  there  pre- 
sented the  ordinances  in  actual  operation  established  "an  administra- 
tion directed  so  exclusively  against  a  particular  class  of  persons  as 
to  warrant  and  require  the  conclusion  that,  whatever  may  have  been 
the  intent  of  the  ordinances  as  adopted,  they  were  applied  by  the 
public  authorities  charged  with  their  administration,  and  thus  rep- 
resenting the  state  itself,  with  a  mind  .so  unc(|ual  and  ojiprcssivc  as 
to  amount  to  a  practical  denial  by  the  state  of  that  equal  protection 
of  the  laws  which  is  secured  to  the  petitioners,  as  to  all  other  per.sons, 
by  the  broad  and  benign  provisions  of  the  fourteenth  amendment  to 
the  constitution  of  the  United  States;"  and  the  court  added:  "Though 
the  law  itself  be  fair  on  its  face,  and  impartial  in  appearance,  yet 
if  it  is  applied  ancl  administered  by  jjubhc  authority  with  an  evil  eye 
and  an  unequal  hand,  so  as  to  practically  make  unjust  and  illegal  dis- 
criminations between  persons  in  similar  circumstances,  material  to 
their  rights,  the  denial  of  equal  justice  is  still  within  the  [)rohibition 
of  the  constitution." 


140  PROCEEDINGS  AND  ORDINANCES 

Nearly  all  the  processions,  parades,  etc.,  that  ordinarily  occur  are 
excepted  from  the  ordinance  in  question,  followed  by  a  provision 
that  permission  to  march  or  parade  shall  at  no  time  "be  refused  to 
any  political  party  having  a  regular  state  organization."  It  is  diffi- 
cult to  see  how  this  can  be  considered  municipal  legislation,  dictated 
by  a  fair  and  equal  mind,  which  takes  care  to  protect  and  provide 
for  the  parades  and  processions  with  trumpets,  drums,  banners,  and 
all  the  accompaniments  of  political  turnouts  and  processions,  and  at 
the  same  time  provides,  in  effect,  that  the  Salvation  Army,  or  a  Sun- 
day school,  or  a  temperance  organization  with  music,  banners,  and 
devices,  or  a  lodge  of  Odd  Fellows  or  Masons,  shall  not  in  like  man- 
ner parade  or  march  in  procession  on  the  streets  named  without  get- 
ting permission  of  the  mayor,  and  that  it  shall  rest  within  the  arbi- 
trary, uncontrolled  discretion  of  this  officer  whether  they  shall  have 
it  at  alL  The  ordinance  resembles  more  nearly  the  means  and  instru- 
mentalfties  frequently  resorted  to  in  practicing  against  and  upon  per- 
sons, societies,  and  organizations  a  petty  tyranny,  the  result  of  preju- 
dice, bigotry,  and  intolerance,  than  any  fair  and  legitimate  provision 
in  the  exercise  of  the  police  power  of  the  state  to  protect  the  public 
peace  and  safety.  It  is  entirely  un-American,  and  in  conflict  with 
the  principles  of  our  institutions  and  all  modern  ideas  of  civil  liberty. 
It  is  susceptible  of  being  applied  to  offensive  and  improper  uses,  made 
subversive  of  the  rights  of  private  citizens,  and  it  interferes  with  and 
abridges  their  privileges  and  immunities,  and  denies  them  the  equal 
protection  of  the  laws  in  the  exercise  and  enjoyment  of  their  un- 
doubted rights. 

In  the  exercise  of  the  police  power,  the  common  council  may,  in 
its  discretion,  regulate  the  exercise  of  such  rights  in  a  reasonable 
manner,  but  cannot  suppress  them,  directly  or  indirectly,  by  attempt- 
ing to  commit  the  power  of  doing  so  to  the  mayor  or  any  other  offi- 
cer. The  discretion  with  which  the  council  is  vested  is  a  legal  dis- 
cretion, to  be  exercised  within  the  limits  of  the  law,  and  not  a  dis- 
cretion to  transcend  it  oi^  to  confer  upon  any  city  officer  an  arbitrary 
authority,  making  him  in  its  exercise  a  petty  tyrant.  Such  ordinances 
or  regulations,  to  be  valid,  must  have  an  equal  and  uniform  applica- 
tion to  all  persons,  societies,  or  organizations  similarly  circumstanced, 
and  not  be  susceptible  of  unjust  discriminations,  which  may  be  arbi- 
trarily practiced  to  the  hurt,  prejudice,  or  annoyance  of  any.  An 
ordinance  which  expressly  secures  to  political  parties  having  state 
organizations  the  absolute  right  to  street  parades  and  processions,  with 
all  their  usual  accompaniments,  and  denies  it  to  the  societies  and 
other  like  organizations  already  mentioned,  except  by  permission  of 
the  mayor,  who  may  arbitrarily  refuse  it,  is  not  valid,  and  offends 
against  all  well-established  ideas  of  civil  and  religious  liberty.  The 
people  do  not  hold  rights  as  important  and  well  settled  as  the  right 
to  assemble  and  have  public  parades  and  processions  with  music  and 
banners  and  shouting  and  songs,  in  support  of  any  laudable  or  lawful 


ESSENTIALS    OF   VALID   ORDINANCE 


141 


cause,  subject  to  the  power  of  any  public  ofificer  to  interdict  or  prevent 
them.  Our  government  is  "a  government  of  laws,  and  not  of  men," 
and  these  principles,  well  established  by  the  courts,  by  the  fourteenth 
amendment  to  the  constitution  of  the  United  States,  have  become  a 
part  of  the  supreme  law  of  the  land,  so  that  no  officer,  body,  or  law- 
ful authority  can  "deny  to  any  person  the  equal  protection  of  the 
laws." 

It  is  plain  that  the  ordinance  in  question  is  illegal  and  void,  and  for 
this  reason  the  order  of  the  commissioner  must  be  reversed.  The 
order  of  the  court  commissioner  is  reversed,  and  the  petitioner  or- 
dered discharged. 


PEOPLE  v.  ARMSTRONG. 

(Supreme  Court  of  Michigan,  1889.     73  Mich.  288,  41  N.  W.  275,  2  L.  R.  A. 

721,  16  Am.  St.  Rep.  578.) 

Long,  J.  This  case  comes  from  the  recorder's  court  of  the  city 
of  Detroit  by  writ  of  certiorari.  The  complaint  is  made  under  sec- 
tion 12,  c.  55,  Rev.  Ordinances  City  of  Detroit,  as  amended  August 
22,  1885,  and  charges  that  at  the  city  of  Detroit  on  the  18th  day  of 
June,  1888,  within  the  corporate  limits  of  said  city,  on  Woodward 
avenue,  at  the  corner  of  Grand  River  avenue,  the  defendant,  John 
Armstrong,  then  and  there  unlawfully  and  willfully  did  circulate 
and  distribute  and  give  away  circulars,  hand-bills,  and  advertising 
cards,  to  the  evil  example  of  all  others  in  like  cases  offending,  and 
contrary  to  the  ordinance  of  said  city,  etc.  The  conceded  facts  prov- 
en on  the  trial  are  that  defendant  was  distributing  cards  on  the 
corners  of  Woodward  and  Grand  River  avenues,  in  the  city  of  De- 
troit, on  the  evening  of  June  18,  1888;  that  defendant  is  one  of  the 
invitation  committee  referred  to  in  the  cards ;  that  no  cards  were  to 
be  seen  upon  the  ground  or  sidewalk  at  or  near  the  place  of  dis- 
tributing the  same;  tlial  cards  were  given  to  those  only  who  ex- 
pressed or  appeared  to  desire  the  same,  and  took  the  same  willing- 
ly; that  the  use  of  the  Y.  M.  C.  A.  privileges  offered  by  the  cards 
was  entirely  gratuitous ;  that  cards  were  offered  persons  unknown  to 
-defendant.     The  cards  wire  in  the  following  form  and  size: 


Till-: 

I.NVITATION 
COMMI'lTKr: 

■ ■ 

INVITES 
CORDIALLY 

YOU 

TO 

TIMS  <  )K  ANY 
I'rom  7:4.' 
AT  THE  Y.  M. 

SI'KND 

MONDAY  NH^IIT. 
to  9  o'clock, 
C.  A.  BUILDING. 

icr: 

WATr.R    AND    PANS. 

14:>  PROCEEDINGS  AND  ORDINANCES 

The  provision  of  the  charter  of  the  city  of  Detroit,  under  which 
it  is  claimed  the  city  had  power  to  pass  the  ordinance  under  which 
the  complaint  is  made,  reads:  "That  the  council  shall  have  power 
to  provide  for  cleaning  of  highways,  streets,  avenues,  drains,  alleys," 
etc.,  "of  dirt,  filth  and  other  substances ;  *  *  *  "  also  "to  pro- 
hibit and  prevent  the  incumbering  or  obstructing  of  streets,  drains, 
alleys,  cross-walks,  sidewalks,  and  all  public  grounds  and  places,  with 
vehicles,  animals,  boxes,  signs,  barrels,  posts,  buildings,  dirt,  stone, 
brick,  and  all  other  material  and  things  whatsoever,  of  every  kind 
and  nature ;  *  *  * "  also  "to  control,  prescribe,  and  regulate 
the  manner  in  which  highways,  streets,  avenues,  lanes,  alleys,  public 
grounds,  and  spaces  in  said  city  shall  be  used  and  enjoyed;  *  *  *  " 
also  "to  prohibit  and  prevent  the  flying  of  kites,  and  all  practices, 
amusements,  and  doings  therein  having  a  tendency  to  frighten  teams 
and  horses." 

The  ordinance  under  which  the  complaint  is  made  reads:  "Sec. 
12.  Hereafter  no  person  shall  himself,  or  by  another  party,  attach, 
place,  print,  paint,  or  stamp  any  placard,  circular,  .show-bill,  or  ad- 
vertisements, of  any  description  whatever,  except  such  as  may  be 
expressly  provided  by  law,  on  any  street  or  sidewalk,  or  upon  any 
public  place  or  object,  in  the  city,  or  upon  any  fence,  building,  or 
property  belonging  to  the  city,  or  upon  any  telegraph  pole,  telephone 
pole,  electric  light  pole  or  tower,  or  upon  any  hitching-post,  horse- 
block, or  curb-stone,  in  any  public  street  or  alley  in  the  city  of  De- 
troit, and  no  person  shall  himself  or  by  another  circulate,  distribute, 
or  give  away  circulars,  hand-bills,  or  advertising  cards  of  any  de- 
scription in  or  upon  any  of  the  public  streets  and  alleys  of  said  city." 

On  the  trial  of  the  case,  defendant's  attorney  asked  for  the  dis- 
charge of  the  defendant,  which  the  court  overruled,  and  found  the 
defendant  guilty,  and  imposed  a  fine  of  three  dollars,  in  default  of 
payment  of  which  fine  defendant  was  ordered  to  be  imprisoned  in 
the  Detroit  house  of  correction  for  a  period  not  exceeding  20  days. 
The  said  fine  was  imposed  under  authority  of  section  19,  c.  55,  of  the 
ordinance,  which  reads:  "Sec.  19.  Any  violation  of  the  provisions 
of  this  ordinance  shall  be  punished  by  a  fine  not  to  exceed  one  hun- 
dred dollars,  and  costs  of  prosecution;  and  in  the  imposition  of  any 
fine  and  costs  the  court  may  make  a  further  sentence  that  the  of- 
fender may  be  imprisoned  in  the  Wayne  county  jail  or  the  Detroit 
house  of  correction  until  the  payment  thereof:  provided,  however, 
that  the  period  of  such  imprisonment  shall  not  exceed  six  months." 

The  allegations  of  error  contained  in  the  affidavit  for  the  writ  of 
certiorari  are :  That  the  ordinance  upon  which  this  complaint  is 
based  is  invalid,  in  that  the  common  council  had  no  authority  under 
the  charter  of  the  city  to  adopt  the  same ;  that  the  ordinance  is  in- 
valid, because  unreasonable,  oppressive,  and  in  contravention  of 
constitutional  rights ;  that  the  court  had  no  authority  to  impose  any 
fine  or  penalty,  because  the  ordinance  under  which   the   penalty  is 


ESSENTIALS    OF    VALID   ORDINANCE  143 

claimed  to  be  imposed  is  unconstitutional,  in  that  it  permits  and  au- 
thorizes the  imposition  of  fines  and  penalties  excessive  and  unreason- 
able and  entirely  disproportionate  to  offenses  created  and  specified; 
that  the  court  had  no  authority  to  impose  a  penalty,  and  the  judg- 
ment is  void  because  the  ordinance  under  which  the  penalty  imposed 
is  claimed  to  be  authorized  is  illegal,  in  that  it  provides  for  variable 
and  uncertain  penalties  for  offenses  charged;  that  the  defendant 
should  have  been  discharged. 

Corporations  derive  all  their  powers  from  legislative  acts,  and 
they  can  pass  no  ordinance  which  conflicts  with  the  charter.  Where 
the  legislature,  in  terms,  confers  upon  a  municipal  corporation  the 
power  to  pass  ordinances  of  a  specified  and  defined  character,  if  the 
power  thus  delegated  be  not  in  conflict  with  the  constitution,  an  or- 
dinance passed  pursuant  thereto  cannot  be  impeached  as  invalid  be- 
cause it  would  have  been  regarded  as  unreasonable  if  it  had  been 
passed  under  the  incidental  power  of  the  corporation,  or  under  a 
grant  of  power  general  in  its  nature.  In  other  words,  what  the  leg- 
islature distinctly  says  may  be  done  will  not  be  set  aside  by  the 
courts,  unless  in  conflict  with  the  constitution,  because  they  may 
deem  it  unreasonable.  But  where  the  power  to  legislate  on  a  given 
subject  is  conferred,  but  the  mode  of  its  exercise  is  not  prescribed, 
then  the  ordinance  passed  in  pursuance  thereof  must  be  a  reasonable 
exercise  of  the  power,  or  it  will  be  pronounced  invalid.  1  Dill.  ]\Iun. 
Corp.  §  262.  The  fact,  however,  that  an  ordinance  covers  matters 
which  the  city  has  no  power  to  control  is  no  reason  why  it  should 
not  be  enforced  as  to  those  which  it  may  control.  The  unauthorized 
provisions  do  not  invalidate  the  whole  ordinance,  if  they  can  be 
separated  from  the  rest  of  the  ordinance  without  so  mutilating  it  as 
to  render  it  inoperative.     Kettering  v.  Jacksonville,  50  111.  39. 

It  is  insisted  upon  the  part  of  the  prosecution  that  the  power  con- 
tained in  the  charter  is  sufficient  to  warrant  the  passage  of  the  or- 
dinance. There  is  an  express  power  in  the  charter  to  provide  for 
cleaning  the  highways,  streets,  avenues,  lanes,  alleys,  public  grounds, 
and  squares,  cross-walks,  and  sidewalks,  in  said  city,  of  dirt,  mud, 
filth  and  other  substance;  also  to  prevent  tlu-  incumbering  or  ob- 
structing of  streets,  lanes,  alleys,  etc.,  and  to  control,  prescribe,  and 
regulate  the  manner  in  which  the  highways,  streets,  etc.,  shall  be 
used  and  enjoyed,  as  well  as  to  prohibit  and  prevent  the  flying 
of  kites,  and  all  practices,  amusements,  and  doings  therein  having 
a  tendency  to  frighten  teams  and  horses,  or  dangerous  to  life  or 
jiropcrty.  This  is  not  an  express  grant  of  power  to  the  city  of  De- 
troit to  pass  a  by-law  or  ordinance  to  prohibit  a  person  from  circulat- 
ing, distributing,  or  giving  away  circulars,  hand-bills,  or  advertising 
cards  of  any  description,  in  or  upon  any  of  the  public  streets  and 
alleys  of  said  city,  and  to  punish  by  fine  anrl  imprisonment  in  the 
county  jail  or  the  Detroit  house  of  correction  for  violation,  and  there 
is  no  such  power  implicfl  in  these  provisions  of  the  charter. 


144  PROCEEDINGS  AND  ORDINANCES 

Even  if  it  could  be  held  that  the  charter  authorized  it,  this  part 
of  the  ordinance  is  not  a  reasonable  exercise  of  the  power  granted. 
It  is  true  that  the  miscellaneous  throwing  to  the  winds  of  hand-bills, 
circulars,  or  advertising  cards  may  be  an  act  that  would  be  very 
desirable  to  prohibit.  Such  a  distribution  of  cards  or  paper  of  any 
kind  would  not  only  litter  up  the  street,  and  become  a  nuisance  up- 
on  and  along  the  streets,  sidewalks,  and  cross-walks,  but  naturally 
would  tend  to  frighten  teams  and  horses  hitched  upon  or  being 
driven  along  the  streets,  and  great  danger  might  be  apprehended  to 
life  and  limb ;  yet  the  reasonableness  or  unreasonableness  of  an  ordi- 
nance is  not  determined  by  the  enormity  of  some  offense  it  seeks  to 
prevent  and  punish,  but  by  its  actual  operation  in  all  cases  that  may 
be  brought  thereunder.  It  is  conceded  in  the  present  case  that  these 
cards  were  given  to  those  only  who  expressed,  or  appeared  to  ex- 
press, a  desire  for  the  same,  and  that  no  cards  were  to  be  seen  upon 
the  ground  or  sidewalk  at  or  near  the  place  where  the  defendant  was 
distributing  them;  and  it  is  not  pretended  that  the  rights  of  any 
person  were  interfered  with  by  defendant,  or  that  any  teams  or 
horses  were  frightened.  There  was  no  indiscriminate  scattering  of 
the  papers  to  the  winds,  and  the  cards  of  the  size  of  one  and  one-half 
inches  by  two  inches  contained  nothing  but  what  was  legitimate  and 
proper  for  publication  and  distribution.  The  card  itself  was  not 
only  harmless,  but  the  words  printed  thereon  were  an  invitation  to 
a  moral  and  Christian  assembly  of  people,  gathered  together  for  the 
public  good.  If  this  act  can  be  classed  as  an  ofifense  punishable  by 
fine  and  imprisonment,  then  selling  or  distributing  newspapers  upon 
the  streets  of  the  city  would  be  punishable  in  the  same  way. 

To  render  ordinances  reasonable,  they  should  tend  in  some  degree 
to  the  accomplishment  of  the  object  for  which  the  corporation  was 
created  and  its  powers  conferred.  The  unreasonableness  of  this 
ordinance  is  made  apparent  when  we  consider  the  penalty  which 
may  be  imposed  for  its  violation, — a  fine  of  $100,  and  costs  of  prose- 
cution, and,  in  default  of  payment,  imprisonment  in  the  county  jail 
or  Detroit  house  of  correction  for  a  period  of  six  months.  If  the 
conviction  could  be  sustained,  then  any  person  upon  any  public 
street  or  alley,  anywhere  within  the  corporate  limits  of  the  city  of  De- 
troit, giving  away  advertising  cards,  however  remote  the  street  or 
alley  from  the  business  centers,  could  be  convicted  and  punished  in 
like  manner.  Laws  which  attempt  to  regulate  and  restrain  our  con- 
duct in  matters  of  mere  indifference,  without  any  good  end  in  view, 
are  regulations  destructive  of  liberty.  Under  our  constitution  and 
system  of  government  the  object  and  aim  is  to  leave  the  subject  en- 
tire master  of  his  own  conduct,  except  in  the  points  wherein  the 
public  good  requires  some  direction  or  restraint.  What  direction  or 
restraint  is  required  for  the  public  good  in  the  mere  act  of  giving 
away  an  advertising  card  or  hand-bill?  This  part  of  the  ordinance 
is  not  aimed  at  the  littering  up  of  the  streets,  or  to  the  frightening 


ESSENTIALS   OF   VALID   OKDINANCE  145 

of  horses,  but  the  offense  is  made  complete  in  itself  by  the  mere  act 
of  distributing  or  giving  away  of  these  enumerated  articles. 

In  Frazee's  Case,  63  .Mich.' 396,  30  N.  W.  72,  6  Am.  St.  Rep.  310, 
it  was  held  by  this  court  that  a  city  ordinance  providing  that  "no 
person  or  persons,  associations  or  organizations,  shall  march,  parade, 
ride,  or  drive  in  or  upon  or  through  the  public  streets  of  the  city 
of  Grand  Rapids,  with  musical  instruments,  banners,  flags,  torches, 
flambeaux,  or  while  singing  or  shouting,  without  having  first  ob- 
tained the  consent  of  the  mayor  of  said  city,"  is  unreasonable  and 
invalid,  because  it  suppresses  what  is,  in  general,  perfectly  lawful, 
and  leaves  the  power  of  permitting  or  restraining  processions  to  an 
unregulated  official  discretion.  In  that  case  Chief  Justice  Campbell, 
speaking  for  the  court,  said :  "No  one  in  his  senses  could  regard  a 
penalty  of  $500  for  such  trivial  offenses  as  most  of  those  covered  by 
this  by-law  as  within  any  bound  of  reason."  Many  decisions  of 
the  courts  of  other  states  are  to  be  found  holding  by-laws,  much 
less  stringent  and  arbitrary  in  their  terms,  unreasonable  and  invalid. 
1  Dill.  Mun.  Corp.  §  253;  Clinton  v.  Phillips,  58  111.  102,  11  Am. 
Rep.  52;  Kip  v.  Paterson,  26  N.  J.  Law,  298;  Commissioners  v.  Gas 
Co.,  12  Pa.  318;    Com.  v.  Robertson,  5  Cush.  (Mass.)  438. 

This  ordinance  not  only  does  not  come  within  the  power  granted 

by   the   charter,   but   it   is  also   unreasonable   and   unwarranted.     It 

follows    that    the    conviction    must    be    set    aside,    the    proceedings 

quashed,  and  defendant  discharged.     The  other  justices  concurred. 

CooLET  Cases  Mun.C. — 10 


1 16  OFFICERS,  AGENTS,  AND    EMPLOYES 


OFFICERS,  AGENTS,  AND  EMPLOYES 
I.  Eligibility  1 


STATE  ex  rel.  TAYLOR  v.  SULLIVAN. 

(Supreme  Court  of  Minnesota,  1891.    45  Minn.  309,  47  N.  W.  802,  11  L.  R.  A. 

272,    22    Am.    St.    Rep.    729.) 

Application  for  quo  warranto. 

Dickinson,  J.  By  this  proceeding,  the  relator  seeks  an  adjudi- 
cation as  to  the  right  of  the  respondent  to  hold  the  office  of  county 
attorney  of  Stearns  county,  for  which  office  he  received  a  majority 
of  the  votes  cast  at  the  general  election  in  1890.  The  point  of  con- 
tention is  whether  the  respondent  was  legally  elected,  and  can  hold 
the  office  under  such  election,  he  being  of  foreign  birth,  and  having 
never  declared  his  intention  to  become  a  citizen  of  the  United 
States  until  after  such  election. 

The  contention  that  the  relator  has  no  such  private  interest  in  the 
matter  as  justifies  him  to  invoke  a  decision  upon  it,  is  not  sustained. 
The  relator  was  elected  to  the  office  at  the  election  in  1888,  qualified 
and  entered  upon  the  discharge  of  its  duties.  He  is  still  the  incum- 
bent of  the  office,  unless  he  has  been  superseded  by  the  respond- 
ent, or  unless  a  vacancy  has  occurred  by  force  of  the  statute.  The 
term  of  office  for  which  the  relator  was  elected  was  "two  years,  and 
until  his  successor  is  elected  and  qualified."  Gen.  St.  1878,  c.  8,  § 
210.  If  the  election  of  the  respondent  was  not  legally  authorized,  the 
relator  would  continue  to  hold  the  office  by  force  of  this  express 
provision  of  the  statute.  State  v.  Benedict,  15  Minn.  198  (Gil.  153); 
People  V.  Tilton,  Z7  Cal.  614.  The  case  in  this  particular  is  dis- 
tinguishable from  that  of  County  of  Scott  v.  Ring,  29  Minn.  398,  13 
N.  W.  181.  We  therefore  hold  that  the  relator's  interest  entitled 
him  to  call  in  question  the  legality  of  the  respondent's  election. 

We  come  then  to  the  question  of  the  right  of  the  respondent  to 
hold  the  office  by  virtue  of  his  election  in  1890.  It  appears  that  at 
the  time  of  the  election,  the  respondent  was  not  a  citizen  of  the 
United  States,  and  had  not  declared  his  intention  to  become  a  citizen, 
conformably  to  the  laws  of  the  United  States  upon  the  subject  of 
naturalization.  He  relies,  however,  upon  the  fact  that  after  the 
election,  and  before  the  commencement  of  the  term  of  office  for 
which  he  was  elected,  he  duly  declared  his  intention  to  become  a 
citizen ;  and  so  the  fact  is  shown  to  be.     It  is  not  to  be  questioned 

1  For  discussion  of  principles,  see  Cooley,  Mun.  Corp.  §  56. 


ELIGIBILITY  147 

that  at  the  election  in  1890,  the  respondent  was  not  entitled  to  vote 
at  any  election  in  this  state.  The  constitution  (article  7,  §§  1,  2)  so 
declares.  Section  7  of  the  same  article  reads:  ''Every  person  who, 
by  the  provisions  of  this  article,  shall  be  entitled  to  vote  at  any  elec- 
tion, shall  be  eligible  to  any  office  which  now  is,  or  hereafter  shall 
be,  elective  by  the  people  in  the  district  wherein  he  shall  have  resid- 
ed thirty  days  previous  to  such  election,  except  as  otherwise  provid- 
ed in  this  constitution,  or  the  constitution  and  laws  of  the  United 
States."  This  was  intended  as  a  restriction,  and  it  has  the  efifect  of 
a  constitutional  declaration  that  only  such  persons  as  by  the  provi- 
sions of  this  article  are  entitled  to  vote  shall  be  "eligible"  to  any 
elective  office. 

We  need  not  dwell  upon  this  proposition,  for  the  argument  for 
the  respondent  virtually  concedes  it.  He  rests  his  case  upon  the 
proposition  that  this  restriction  refers  merely  to  the  holding  of  of- 
fice, and  not  to  elections,  and  hence  that  he  was  legally  entitled  to  the 
office,  because  his  disqualification  was  removed  before  the  com- 
mencement of  the  term,  although  subsequent  to  the  election.  This 
question  has  not  been  heretofore  decided  in  this  state.  The  terms 
of  the  statute  construed  in  Territory  v.  Smith,  3  Minn.  240  (Gil.  164), 
74  Am.  Dec.  749,  were  such  that  the  decision  has  no  bearing  upon 
the  construction  of  the  very  different  language  of  the  constitutional 
provision  under  consideration.  The  case  of  Barnum  v.  Oilman,  27 
-Minn.  466,  8  N.  W.  375,  38  Am.  Rep.  304,  relating  to  a  different 
constitutional  provision  did  not  involve  the  question  here  presented, 
although  language  was  used  in  the  opinion  of  the  majority  of  the 
court  in  harmony  with  the  contention  of  this  respondent. 

Our  intjuiry  is  as  to  the  meaning  of  the  word  "eligible"  as  used  in 
the  constitution.  In  Webster's  Dictionary  its  meaning  is  defined  to 
be,  "proper  to  be  chosen ;  qualified  to  be  elected."  In  this  and  the 
cognate  words  derived  from  the  same  source — the  Latin  verl)  "cli- 
gere" — the  idea  primarily  involved  is  that  of  choosing,  selecting.  It 
is  exi)ressed  in  our  verb  "to  elect,"  derived  from  the  same  Latin 
worrl.  This  primary  and  strictly  proper  signification  of  the  word 
"eligible"  is  also  its  well-understood  popular  meaning.  If  we  had 
adopted  the  ff)rm  "electable"  for  the  adjective  instead  of  following 
more  nearly  the  form  of  the  verb  fn»m  which  it  is  derived,  the  mean- 
ing might  have  been  more  obvious,  but  it  would  not  have  been  dif- 
ferent. There  seems  to  be  no  sufficient  reason  why  the  ])roper  and 
ordinary  meaning  should  not  be  giveti  to  the  word  "eligible,"  in  the 
constitution,  as  though  it  had  read,  "no  person  shall  be  qualified  to 
be  elected,"  etc.  This  is  the  plain  anfl  natural  construction  of  the 
language,  and  the  other  provisions  with  which  that  immediately  un- 
der consideration  is  associated,  adrl  to  the  probability  that  this  word 
was  intended  to  refer  to  the  election  to  office,  and  not  merely  to  the 
holding  of  office. 


148  OFFICERS,  AGENTS,  AND    EMPLOYES 

The  whole  article  relates  to  the  elective  franchise.  It  declares 
the  disability  of  certain  classes,  including  persons  of  foreign  birth 
who  have  not  declared  their  intention  to  become  citizens  of  the 
United  States,  to  vote  at  any  election.  That  declared  disability  cer- 
tainly relates  to  the  time  when  an  election  takes  place.  Closely 
associated  with  this  is  the  provision  in  question,  which  in  legal  ef- 
fect declares  that  the  persons  thus  disqualified  to  vote  shall  not  be 
"eligible  to  any  office"  elective  by  the  people.  Neither  the  proper 
signification  of  the  language,  nor  the  context,  justify  the  conclu- 
sion that  at  this  point  there  is  an  abrupt  transition  in  the  subject 
from  elections  to  the  holding  of  office.  Elsewhere  in  the  constitu- 
tion we  do  find  express  provision  relating  to  disqualification  for  hold- 
ing office  as  in  section  11  of  article  6,  and  in  section  9  of  article  4. 

Again,  the  positive  and  unambiguous  restriction  upon  the  right 
to  vote  at  any  election  is  in  itself  a  reason  supporting  the  conclusion 
that  when  the  disqualified  classes  are  declared  to  be  ineligible  to  any 
elective  office,  it  was  meant  that  they  could  not  be  legally  elected,  or 
electable,  if  we  may  use  such  a  word.  There  is  little  reason  to  sup- 
pose that  it  was  intended  that  persons  who  by  reason  of  their  alien- 
age, or  for  other  .specified  reasons,  were  expressly  excluded  from  the 
right  to  vote  at  any  election,  should  still  be  deemed  qualified  to  be 
elected  to  any  office.  In  State  v.  Murray,  28  Wis.  96,  9  Am.  Rep. 
489,  it  was  considered  to  be  a  fundamental  principle  of  popular  gov- 
ernment, even  in  the  absence  of  any  constitutional  or  statutory  re- 
striction, that  one  who  is  not  a  qualified  elector  cannot  legally  hold 
an  elective  office.  According  to  the  opinion  of  Ryan,  C.  J.,  in  the 
later  case  of  State  v.  Trumpf,  50  Wis.  103,  5  N.  W.  876,  6  N.  W. 
512,  this  proposition  should  in  principle  be  more  broadly  stated,  and 
only  such  persons  as  are  themselves  electors  at  the  time  of  the  elec- 
tion should  be  deemed  to  be  eligible  to  office.  We  think  that  this 
must  certainly  be  so  considered  under  a  constitution  which  in  efifect 
declares  that  only  such  persons  shall  be  eligible  to  elective  offices. 

The  construction  which  we  place  upon  the  constitution  is  sup- 
ported by  Searcy  v.  Crow,  15  Cal.  117;  State  v.  Clarke,  3  Nev.  566; 
State  V.  McMillen,  23  Neb.  385,  36  N.  W.  587.  In  Smith  v.  Moore, 
90  Ind.  294,  (followed  in  Vogel  v.  State,  107  Ind.  377,  8  N.  E.  164,) 
the  word  "eligible"  was  construed  as  referring  to  the  time  of  the 
commencement  of  the  term  for  which  a  person  is  elected.  The  dis- 
senting opinion  of  Elliott,  J.,  referring  to  the  earHer  decisions  in  that 
court,  is  worthy  of  attention.  Our  conclusion  is  that  as  the  case 
now  appears,  the  respondent  was  not  legally  elected  to  the  office,  and 
that  his  subsequent  declaration  of  his  intention  to  become  a  citizen 
does  not  entitle  him  to  hold  the  office. 

It  is  therefore  ordered  that  the  respondent's  motion  to  dismiss  the 
order  to  show  cause  be  denied,  and  that  the  application  of  the  re- 
lator for  a  writ  of  quo  warranto  be  granted. 


APPOINTMENT   AND   ELECTION  149 


II.  Appointment  and  Election  '^ 


LAWRENCE  v.  INGERSOLL. 

(Supreme  Court  of  Tennessee,  1889.    88  Teun.  52,  12  S.  W.  422,  6  L.  R.  A.  308, 

17  Am.  St.  Rep.  870.) 

Snodgrass,  J.^  The  bill  in  this  cause  was  filed  by  J.  C.  Law- 
rence, claiming  to  be  a  duly-elected  and  qualified  member  of  the  board 
of  education  of  the  city  of  Knoxville,  for  an  injunction  against  de- 
fendants and  the  other  four  members  of  said  board,  to  prohibit  the 
meeting  and  action  of  said  board  without  him,  and  to  compel  defend- 
ants, Dv  mandamus,  to  recognize  him  as  a  member  of  the  board,  and 
permit  him  to  take  part  in  its  proceedings,  upon  allegations  of  re- 
fusal of  defendants  so  to  do.  The  injunction  issued,  and,  on  final 
hearing,  mandamus  was  awarded  as  prayed  for.  Respondents  ap- 
pealed, and  assigned  errors.     *     *     * 

Was  the  complainant  elected,  and  is  he  therefore  entitled  to  compel 
the  defendants  to  admit  and  recognize  him  as  a  member  of  the  board? 
To  determine  this  it  is  necessary  to  examine  his  claim  to  election,  and 
then  ascertain  if,  under  the  law,  it  is  well  founded.  To  support  the 
first,  he  shows  the  following  record  of  the  minutes  of  the  proceedings 
of  the  board  of  mayor  and  aldermen,  in  addition  to  the  notification 
or  certificate  of  the  recorder,  before  referred  to, — an  indorsement, 
thereon  of  the  recorder  that  complainant  had  taken  the  oath  required 
by  law : 

"At  a  call  meeting  of  the  board  of  mayor  and  aldermen  of  the  city 
of  Knoxville,  held  Friday,  Jan.  27,  A.  D.  1888,  there  were  present, 
and  answering  roll-call.  Aldermen  Selby,  Barry,  Hockenjos,  Jones, 
Albers,  House,  Perry,  and  McDaniel.  *  *  *  Alderman  Perry 
moved  to  go  into  an  election  of  the  city  school  board,  to  fill  out  the 
unexpired  term  of  Hon.  M.  J.  Condon  resigned.  Motion  carried. 
*  *  *  Alderman  Perry  nominated  F.  L.  Fisher.  Alderman  Jones 
nominated  Rev.  J.  C.  Lawrence.  The  ballot  was  taken,  and  it  was 
found  that  J.  C.  Lawrence  had  received  four  votes,  and  F.  L.  Fislier 
three  votes,  and  a  blank  without  any  name  was  also  found,  and  thrown 
out.  Mayor  Luttrell  declared  J.  C.  Lawrence  legally  elected  as  a  mem- 
ber of  tbc  city  school  board  of  education,  to  fill  out  tlu'  unexpired 
term  of  Hon.  M.  J.  Condon,  resigned.     *     *     *  " 

The  provisions  of  the  charter  in  relation  to  the  election  arc  found  in 
several  sections  of  the  act  of  June  10,  1885,  entitled  "An  act  to  reduce 

2  For  (li.scusslon  of  pririHples  see  Cooley,  Mini,  rnrii.  S  •'",7. 
8  Part  of  this  opinion  and  all  of  the  dissenting  opinion  of  Turney,  C.  J.. 
are  omitted. 


1  .")0  OFFICERS,  AGENTS,  AND    EMPLOYES 

tlie  act  incorporating  the  city  of  Knoxville,  and  the  various  amendments 
thereto,  to  one  act,  and  to  amend  the  same."  Section  63  of  this  act 
provides  that  there  shall  be  a  board  of  education  for  the  city,  to  con- 
sist of  five  members, — citizens  of  the  town,  and  not  members  of  the 
board  of  mayor  and  aldermen. 

"Sec.  64:  The  board  of  education  shall  be  elected  by  the  board  of 
mayor  and  aldermen,  from  the  citizens  and  qualified  voters  of  the  town 
by  ballot ;  and  the  term  of  office  of  each  member  shall  be  five  years." 

"Sec.  3.  *  *  *  i^iig  board  of  mayor  and  aldermen  shall  be 
composed  of  nine  aldermen." 

"Sec.  4.  *.  *  *  The  mayor  shall  not  vote,  except  in  case  there 
shall  be  a  tie  vote,  on  any  question,  and  then  he  shall  by  his  vote  de- 
cide the  question." 

"Sec.  5.  *  *  *  It  shall  require  a  majority  of  the  members  of 
the  board  to  form  a  quorum  for  the  transaction  of  business." 

No  provision  being  made  for  the  filling  of  vacancies  in  the  board 
of  education,  this  defect  was,  remedied  by  an  ordinance  as  follows : 
"In  case  any  vacancy  shall  occur  in  the  board  of  education,  the  un- 
expired term  of  such  member  vacating  shall  be  filled  by  an  election 
by  the  board  of  mayor  and  aldermen,  as  soon  as  practicable  after 
such  vacancy  occurs."     *     *     * 

It  is  observed  that  there  are  nine  aldermen,  who,  with  the  mayor, 
are  to  make  the  election,  if  all  are  present, — the  mayor  having  no 
vote, — as  no  tie  could  result;  that  if  less  than  nine  are  present,  but 
a  majority  of  that  number,  then  those  present  may  elect;  but,  if 
equally  divided  in  an  election,  the  mayor  may  cast  the  deciding  vote, — 
the  only  contingency  in  which  his  act  can  affect  the  question.  In  the 
election  now  being  considered  a  majority  (eight)  were  present,  and 
participating  in  the  election.  This  appears  both  in  the  recitals  of  the 
records  herein  before  shown  and  in  the  fact  that  seven  ballots  were 
cast  for  the  candidates,  and  one  blank  ballot.  It  remains  now  to  in- 
quire, what  is  the  effect  of  this  action  on  the  part  of  this  board,  acting 
through  its  eight  members  and  authorized  quorum?  In  determining 
this  question,  it  must  be  borne  in  mind  that  we  are  not  examining  the 
effect  of  an  election  of  an  indefinite  number  of  electors,  as  the  vote 
of  the  body  of  the  people  of  the  city,  or  the  vote  of  any  indefinite 
number  of  people,  in  a  popular  election ;  or  the  rule  governing  the 
one  is  entirely  different  from  that  governing  the  other.  In  the  case 
of  general  or  special  elections  by  the  vote  of  the  people, — by  the  vote 
of  an  indefinite  number, — the  common-law  rule  is  that  a  plurality  of 
votes  elects.  That  is,  the  candidate  getting  more  votes  than  any  other 
is  elected,  although  he  does  not  get  a  majority  of  the  votes  cast,  and 
hence  it  makes  no  difference  that  there  are  absent  voters,  or  blank 
votes  cast.  They  do  not  change  the  fact  that  one  candidate  receives 
a  plurality ;  and  cannot  do  so,  in  the  very  nature  of  things.  Cooley, 
Const.  Lim.  (5th  Ed.)  779.     *     *     * 


APPOINTMENT   AND   ELECTION  151 

It  is  equally  well  settled,  and,  indeed  is  not  open  to  controversy, 
that  when  an  election  is  to  be  made  by  a  definite  body  of  electors,  as 
members  of  a  board  of  aldermen,  that,  "in  the  absence  of  special  pro- 
vision, the  major  part  of  those  present  at  a  meeting  of  a  select  body 

must  concur,  in  order  to  do  any  valid  act."     1  Dill.   Mun.   Corp.  § 
27Q       *      *      * 

We  have  heretofore  seen  that  under  this  charter  a  majority  of  the 
quorum  is  required.  This  author  shows,  further,  that  the  rule  re- 
specting the  election  by  a  definite  number  in  a  municipal  body  extends 
also  to  other  bodies  of  definite  numbers,  as  legislative,  etc.,  and  shows 
that  in  such  case  a  majority  must  concur,  and  vote  for  the  candidate, 
in  order  to  elect  him.  Quoting  several  cases  and  instances  of  high 
authority,  he  says,  illustrating:  "By  section  15  of  the  Revised  Stat- 
utes of  the  United  States  it  is  provided  that  all  votes  for  senators 
shall  be  by  viva  voce  vote  of  members  of  the  legislature,  and,  by  sec- 
tion 27,  that  all  votes  of  representatives  in  congress  must  be  written 
or  printed  ballots ;  and  that  all  votes  received  or  rendered  contrary  to 
such  action  shall  be  of  no  efifect.  It  has  been  held  that  when  there 
is  no  provision  of  law  making  a  plurality  sufficient  for  an  election  a 
majority  of  the  votes  cast  must  be  for  a  candidate,  in  order  to  elect 
him."  Id.  332,  citing  State  v.  Fagan,  42  Cong.  35.  He  cites  several 
cases  sustaining  the  text,  the  notes  being  as  follows :  "In  the  absence 
of  any  act  of  congress  on  the  subject,  a  state  may  pass  a  law,  or  a  joint 
or  concurrent  resolution  of  the  legislature,  requiring  a  majorit)'  of  all 
the  members  elected  to  both  branches  of  the  legislature  to  elect  a  sena- 
tor of  the  United  States ;  and  in  such  a  case,  where  twenty-nine  votes 
are  given  for  one  candidate,  and  twenty-nine  blank  votes  were  given, 
it  was  held  that  this  did  not  constitute  an  election.  Yulee  v.  Mallory, 
2  Cong.  El.  Cas.  608;  Senate  El.  Cas.  146."  And  again:  "In  1866, 
in  the  Stockton  Case,  in  New  Jersey,  (Senate  El.  Cas.  264,)  it  appeared 
that  there  was  no  law  in  the  state  regulating  the  election  of  senators, 
and  there  had  been  a  practice  of  regulating  the  election  of  all  officers 
by  resolution  of  the  convention ;  and  at  the  convention  for  the  election 
of  senators  in  1865  a  resolution  was  adopted  that  a  plurality  of  the 
members  present  might  elect.  The  judiciary  committee,  reporting 
through  Senator  IVunihull,  decided  in  favor  of  the  validity  of  the 
election ;  but  the  resolution  was  amended  by  the  close  vote  of  22  to 
21,  and  the  candidate  was  declared  not  elected.  It  was  claimed  by 
some  of  the  senators  that  "the  parliamentary  law  re(|uired  a  majority 
to  elect,  and  this  could  only  be  changed  by  a  law  or  resolution  of  the 
house,  acting  in  the  legislative  capacity."     Id.  332. 

Thus  it  appears  by  concurrence  of  text-book,  judicial,  senatorial, 
congressional,  and  legislative  authority,  that  the  rule  is  settled  that 
a  majority  of  a  definite  body  present  and  acting  must  vote  for  a  can- 
didate, in  order  to  elect  liim,  and  that  it  is  not  sufficient  that  he  re- 
ceive a  plurality  of  votes  cast,  or  a  majority,  if  blank  ballots  are  ex- 


152  OFB^ICEUS,  AGENTS,  AND    EMPLOYES 

cliKled.  His  claim  must  not  depend  upon  the  negative  character  of 
the  opposition,  but  upon  the  afiirmative  strength  of  his  own  vote ;  that 
it  is  not  sufficient  that  a  majority  were  not  cast  against  him,  to  be 
elected.  The  majority  must  be  cast  for  him.  "So,  if  a  board  of 
village  trustees  consists  of  five  members,  and  all,  or  four,  are  pres- 
ent, two  can  do  no  valid  act,  even  though  the  others  are  disqualified 
by  interest  from  voting,  and  therefore  omit  or  decline  to  vote.  Their 
assenting  to  the  measure  voted  for  by  the  two,  will  not  make  it  valid. 
If  three  only  were  present,  they  would  constitute  a  quorum.  Then, 
the  votes  of  two,  being  a  majority  of  the  quorum,  would  be  valid. 
Certainly  so,  where  the  three  are  all  competent  to  act."  1  Dill.  Mun. 
Corp.  §  217.  These  authorities  answer  the  proposition,  urged  by 
complainant,  that  the  blank  vote  must  not  be  considered,  and  it  must 
be  treated  as  though  only  7  votes  were  cast,  and  he  got  4.  It  is  true 
that  the  blank  vote  cannot  be,  in  the  technical  sense,  a  ballot,  but  it 
is  nevertheless,  an  act  of  negation, — afiirmative  in  showing  that  an- 
other voter  acted  negative  in  determining  the  majority.  It  was  one 
of  eight,  attempted  to  be  cast  with  the  purpose  of  not  supporting  com- 
plainant, and  is  only  to  be  counted  in  showing  that  he  did  not  get  a 
majority,  just  as  would  have  resulted  had  it  been  an  illegal  vote, — as 
being  for  two  candidates,  or  otherwise. 

But  complainant's  case  would  be  no  better  if  that  vote  was  entirely 
disregarded,  because  the  record  otherwise  shows  that  eight  aldermen 
were  present;  and,  without  reference  to  their  vote,  he  must  have  re- 
ceived five  votes  in  order  to  be  elected.  The  roll-call  shows  eight  pres- 
ent. On  the  vote  to  reconsider,  eight  voted.  Indeed,  it  is  not  any- 
where pretended  by  complainant  that  they  were  not  all  present  and  par- 
ticipating; and,  nowhere  the  contrary  affirmatively  appears.  But  it  is 
said  that  the  mayor  declared  the  election  carried,  and  that  this  is 
equivalent  to  a  vote  for  him ;  and,  with  four  votes  for  him  and  four 
not  for  him,  the  mayor's  vote  or  action  makes  the  election.  There 
are  several  answers  to  this,  all  conclusive.  First,  the  mayor  had  no 
right  to  vote,  as  there  was  no  tie ;  and,  second,  he  did  not  vote ;  third, 
his  action,  declaring  the  result,  without  voting,  would  not  make  an 
election,  because  the  law  does  not  allow  him  to  declare  a  candidate, 
even  on  a  tie,  elected,  without  voting  at  all.  He  could  only,  in  such 
cases,  vote,  and  make  an  election ;  and,  when  he  does  this,  it  makes 
it,  even  though  he  should  then  declare  the  candidate  not  elected. 

A  still  further  argument  is  made,  however,  that  the  board  appears 
to  have  ratified  it,  and  this  should  be  treated  as  giving  validity.  The 
answers  to  this  are,  if  possible,  even  more  conclusive.  They  are — 
First.  That  the  board  has  not  power  to  elect,  except  by  ballot.  There 
was  never  but  one  ballot  cast,  and,  if  that  did  not  make  it,  no  election 
could  otherwise  be  made.  Second.  The  board  did  not  ratify  it.  On 
the  contrary,  four  members  voted  to  reconsider,  and  therefore  against 
ratification,  and  four  for  it.    This,  at  least,  while  unimportant,  was  not 


APPOINTMENT   AND   ELECTION  153 

an  affirmation.  It  was,  at  most,  but  a  tie,  which  the  mayor  might  by 
his  vote  have  decided.  He  did  not  choose  to  vote,  but,  instead,  declared 
the  matter  lost.  In  both  instances  the  mayor  refused  or  failed  to  vote, 
and  contented  himself  with  declaring  that  the  results  stood  accom- 
plished without  his  vote.  We  are  not  presenting  the  parliamentary 
question,  or  attempting  to  show  that  four  against  four  would  rescind 
any  legal  action.  We  are  only  showing  that  no  majority  ever  in  any 
way  voted  to  ratify  an  election.  The  argument  need  not  be  repeated 
here  that  this  meant  nothing,  and  accomplished  nothing.  The  law  is 
that  they  could  not  make  an  election  by  ratification,  and  the  fact  is 
they  did  not.  In  addition  to  the  effort  to  reconsider,  it  is  said,  as  evi- 
dence of  ratification  that  on  the  notification,  called  a  "certificate,"  of 
the  recorder,  in  which  he  advises  complainant  of  his  election,  he  ap- 
pends to  that  statement  the  words,  "by  order  of  the  board,"  and  that 
this  is  evidence  of  ratification.  Having  shown  that  ratification  could 
not  make,  or  make  valid,  an  election,  it  is  perhaps  superfluous  to  deal 
with  the  evidence  of  it ;  but,  having  denied  the  fact,  it  is  proper  not 
to  overlook  this  point,  as  bearing  on  the  question  of  fact  as  to  whether 
or  not  any  act  of  the  board  was  an  attempted  ratification.  We  have 
seen  that  the  recorder  has  nothing  to  do  with  the  election,  either  to 
make  or  declare  or  certify  it,  under  the  charter.  This  whole  paper, 
including  indorsement,  therefore,  goes  for  nothing.  His  statement,  in 
a  paper  that  he  was  not  required  to  make,  that  it  was  done  by  order 
of  the  board,  would  not  prove  that  fact,  of  course;  and  no  other  evi- 
dence of  it  is  offered.  He  may,  and  doubtless  did,  think  himself  au- 
thorized to  make  it,  and  may  have  been  ordered  to  do  so;  but  no 
such  order  is  produced,  and  nothing  else  proves  it. 

The  construction  herein  given  to  the  charter  regulating  municipal 
elections  and  the  action  of  municipal  boards  is  not  only  sound  in  law, 
but  in  policy.  It  would  be  of  the  most  injurious  consequence  to  hold 
that  municipal  bodies  could  make  elections  or  appropriate  money,  legis- 
late rights  away  or  pass  measures  affecting  vast  property  interests,  by 
less  than  an  affirmative  vote  of  an  acting  majority.  It  is  going  suffi- 
ciently far  to  allow  them  to  vote  by  majority  of  a  quorum  present ;  but 
if,  by  legislative  act  or  judicial  construction,  they  should  be  author- 
ized to  act  by  a  majority  of  a  quorum,  there  would  be  no  safe-guards 
effectual  to  protect  the  public,  within  the  scope  of  their  authority. 
It  is  equally  salutary  to  provide,  by  following  well-founded  princii)les 
and  precedents,  that  what  they  will  not  or  do  not  in  fact  do  by  vote 
they  shall  not  accomplish  by  declaring  it  done  without  vote.  Reverse 
the  decree,  and  dismiss  the  bill,  with  costs. 


151  OFFICERS,  AGENTS,  AND    EMPLOYES 


III.  Officers  De  Facto  * 


OLIVER  V.  JERSEY  CITY. 

(Court  of  Error  and  Appeals  of  New  Jersey,  1899.    63  N.  J.  Law,  634,  44  Atl. 
709,  48  L.  11.  A.  412,  76  Am.  St.  Rep.  228.) 

Certiorari  by  the  state,  on  the  prosecution  of  David  W.  Oliver, 
against  the  mayor  and  aldermen  of  Jersey  City  and  the  Greenville  & 
Hudson  Railway  Company,  to  review  an  ordinance  of  the  board 
of  street  and  water  commissioners  of  Jersey  City.  Ordinance  set 
aside  (63  N.  J.  Law,  96,  42  Atl.  782),  and  defendants  bring  error. 

Nixon,  J."*  On  September  19,  1898,  the  board  of  street  and  wa- 
ter commissioners  of  Jersey  City  passed  "An  ordinance  granting  to 
the  Greenville  and  Hudson  Railway  Company  permission  to  cross 
Communipaw  avenue  with  its  tracks  at  grade,  and  regulating  such 
crossing."'  The  ordinance  was  vetoed  by  the  mayor,  but  was  passed 
again,  notwithstanding  the  objections  of  the  mayor,  on  the  3d  of 
October,  1898.  The  defendant  in  error,  a  resident  and  taxpayer  of 
Jersey  City,  was  allowed  a  writ  of  certiorari,  and  a  judgment  of  the 
supreme  court  was  af  terv/ards  obtained  setting  aside  the  ordinance,  and 
this  writ  of  error  brings  that  judgment  before  us  for  review.     *     *     * 

But  the  ordinance  is  assailed  principally  upon  the  ground  that  it  was 
not  legally  adopted.  The  board  of  street  and  water  commissioners  is 
the  governing  body  of  Jersey  City,  and  it  enacts  all  the  local  laws  of 
that  city  respecting  streets  and  water.  It  consists  of  five  members, 
and  the  ordinances  passed  are  subject  to  the  mayor's  approval,  and,  if 
vetoed  by  him,  may  be  again  passed,  notwithstanding  his  objections, 
by  four  votes  of  the  board.  1  Gen,  St.  p.  466.  The  ordinance  in  ques- 
tion was  adopted  at  a  regular  meeting  held  September  19,  1898,  there 
being  four  votes  for  and  one  against  it.  It  was  vetoed  by  the  mayor 
on  September  28th,  and  finally  passed,  over  his  veto,  on  the  3d  of 
October,  1898,  receiving  the  same  number  of  votes.  But  the  con- 
tention is  that  one  of  them  was -not  such  as  could  give  efficacy  to  the 
ordinance.  It  was  cast  by  Robert  G.  Smith,  who  had  been  mus- 
tered into  the  United  States  service  as  colonel  of  the  4th  regiment 
of  New  Jersey  volunteers,  on  July  18,  1898.  The  statute  creating 
the  board  of  street  and  water  commissioners  provides  (1  Gen.  St.  p. 
465)  that  "no  such  commissioner  shall  accept  or  hold  any  other  place 
of  public  trust  or  emolument  within  the  elective  franchise,  nor  any 
appointment  to  public  office,  unless  he  shall  first  resign  his  said  of- 
fice, and  if  he  shall  accept  such  other  office  without  having  resigned 
his  office  of  such  commissioner,  upon  his  acceptance  of  such  place  of 

*  For  discussion  of  principles,  see  Cooley,  Mun.  Corp.  §  59. 
5  Part  of  the  opinion  is  omitted. 


OFFICERS   DE   FACTO  155 

appointment,  his  office  shall  thereupon  become  vacant."  While  there 
has  not  been  furnished  the  best  proof  that  Smith  actually  accepted  the 
office  of  colonel,  yet,  in  the  absence  of  any  rebuttal,  we  shall  hold, 
as  did  the  court  below,  that  it  is  sufficient,  and  that  he  did  accept  such 
office.     *     *     * 

The  question  at  issue  is  thus  narrowed  down  to  the  efficacy  of  Smith's 
vote  in  the  adoption  of  the  ordinance.  Without  his  vote,  it  could 
not  have  been  passed  over  the  veto,  neither  could  it  without  every 
other  vote  it  received,  and  it  is  not  strictly  accurate  to  say  that  his 
vote  had  any  more  jXDtency  than  any  other.  After  his  appointment. 
Smith  continued  to  discharge  the  duties  of  his  office  as  commissioner, 
and  was  present  and  voted  when  the  ordinance  was  adopted,  as  the 
official  minutes  show.  It  would  therefore  be  a  pure  solecism  to  call 
the  office  vacant  at  that  time,  except  in  the  strictly  legal  sense  of  hav- 
ing no  occupant  with  a  de  jure  title.  The  acts  done  by  Smith  in  re- 
spect to  the  adoption  of  the  ordinance  were  neither  more  nor  less 
than  he  would  have  done  had  the  4th  regiment  never  been  organized. 
It  is  therefore  manifest  that  the  words  of  the  statute  (1  Gen.  St.  p. 
465)  already  quoted,  declaring  that  when  a  commissioner  accepts  an- 
other office  his  former  office  shall  become  "vacant,"  cannot  mean, 
in  a  situation  like  this,  that  it  is  corporeally  vacant;  for  the  person 
lawfully  elected  to  fill  it  remained  in  possession  discharging  its  duties. 
Mere  words  in  a  statute  cannot  alone  make  an  office  unoccupied  which 
in  fact  is  occupied.  The  legal  meaning  of  the  words,  in  such  circum- 
stances, is  that  the  office  has  no  occupant  who  holds  by  a  good  title 
in  law,  and  that  the  appointing  power  may  at  once  be  exercised  to 
fill  it,  or,  if  it  is  an  elective  office,  the  people  may  elect,  and  no  adju- 
dication is  required  to  declare  the  vacancy,  although  the  newly  ap- 
pointed or  elected  oflicer  may  find  it  necessary  afterwards  to  resort 
to  quo  warranto  proceedings  to  obtain  actual  possession  of  the  office. 

Under  the  old  rule  of  common  law,  upon  accepting  another  and 
incompatible  office,  tiic  first  became  vacant,  and,  if  the  occupant  re- 
fused to  abandon  it,  a  writ  of  quo  warranto  to  determine  the  ques- 
tion of  incompatibility  was  the  remedy;  and  where  the  common  law 
has  been  superseded  by  statutes  declaring  a  vacancy  under  like  cir- 
cumstances, and  the  occujjant  remains,  a  similar  course  must  be  pur- 
sued to  obtain  jjossession,  or  such  otiier  stci)s  as  the  facts  may  war- 
rant. There  are  familiar  precedents  in  our  own  state  which  illustrate 
the  rules  here  stated.  In  Clark  v.  Iannis,  45  N.  J.  Law,  69,  the  court 
said:  "It  is  clear,  both  upon  reason  and  autlicjrity,  that  a  statute  de- 
claring an  office  vacant,  for  some  act  or  omission  of  the  incumbent 
after  he  enters  upon  his  duties,  does  not  execute  itself."  *  *  * 
The  same  practice  prevails  in  other  states,  and  the  rule  is  clearly  stated 
in  State  v.  Jones,  19  Ind.  356,  where  it  is  said:  "Where  it  appears, 
prima  facie,  that  acts  or  events  have  occurred  subjecting  an  office 
to  a  judicial  declaration  of  being  vacant,  the  authority  authorizetl  to 
fill  such  vacancy,  supposing  the  office  to  be  vacant,  may  pixiceed  be- 


inO  OKFIOKUS,  AGKNTS,  AND    EMPLOYES 

fore  procuring  a  jiulicial  declaration  of  the  vacancy,  and  appoint  or 
elect,  according  to  the  forms  of  law,  a  person  to  fill  such  office ;  but 
if,  when  such  person  attempts  to  take  possession  of  the  office,  he  is 
resisted  by  the  previous  incumbent,  he  will  be  compelled  to  try  the 
right,  and  oust  the  incumbent,  or  fail  to  oust  him,  in  some  mode  pre- 
scribed by  law." 

Smith,  then,  being  in  the  office  under  color  of  a  legal  title  ab  origine, 
and  no  other  person  claiming  a  right  to  it,  was  he  a  commissioner 
de  facto?  Lord  Ellenborough,  in  1805,  in  Rex  v.  Bedford  Level, 
6  East,  356,  said :  "An  officer  de  facto  is  one  who  has  a  reputation 
of  being  an  officer;  who  assumes  to  be,  and  yet  is  not,  a  good  officer 
in  point  of  law."  This  definition  has  never  been  questioned,  and 
all  those  given  by  the  text  writers  since  are  little  more  than  variations 
of  this  one.  Tested  by  this  ancient  or  any  modern  definition.  Smith 
must  be  held  to  have  been  such  an  officer  when  this  ordinance  was 
passed.  He  certainly  had  color  of  title  and  reputation;  for  the  legal 
voters  of  Jersey  City  elected  him  in  the  spring  of  1898  a  member  of 
the  board  for  the  term  of  three  years,  and  he  duly  qualified  as  such, 
and  entered  upon  his  duties,  with  the  full  knowledge  and  acquiescence 
of  the  public.  He  had  never  resigned,  the  board  had  not  been  abol- 
ished, and  his  term  had  not  expired.     *     *     * 

He  did  not  assert  a  right  which  any  other  person  claimed,  or  per- 
form any  official  duties  that  any  one  else  pretended  to  have  any  right 
to  perform  in  his  stead,  but  only  those  duties  which  belonged  to  the 
office  he  was  elected  to  fill,  and  which  the  law  contemplated  should  be 
done,  and  the  public  expected  him  to  do  when  they  elected  him ;  for 
the  law  creating  the  board  provides  that  the  judgment  and  wisdom 
of  five  commissioners  should  determine  the  questions  that  arise  in  the 
passage  of  ordinances  concerning  the  streets.  The  board,  also,  rec- 
ognized his  membership.  He  participated  in  their  proceedings.  His 
name  was  called  and  vote  recorded  in  the  adoption  of  ordinances, 
and,  if  not  present,  his  absence  was  duly  noted  in  the  official  minutes. 
With  all  these  facts  and  circumstances  appearing  in  the  record,  and 
undisputed,  we  must  hold  that  Smith  was  a  commissioner  de  facto. 

This  conclusion  is  in  accord,  we  think,  with  the  decisions  in  this 
state  and  elsewhere  on  this  subject.  In  Dugan  v.  Farrier,  47  N.  J. 
Law,  383,  1  Atl.  751,  Justice  Dixon  said:  "One  who  assumes  an  of- 
fice legally,  and  in  good  faith  remains  in  it  after  his  title  has  ended, 
is  a  de  facto  officer."  The  same  doctrine  was  held  in  Flaucher  v. 
City  of  Camden,  56  N.  J.  Law,  244,  28  Atl.  82.  *  *  *  In  the  case 
of  Sheehan,  122  Mass.  445,  23  Am.  Rep.  374,  one  Mr.  Hawkes,  while 
holding  the  office  of  justice  of  the  peace,  was  elected  to  the  state 
legislature,  and  had  qualified  and  entered  upon  his  duties,  but  con- 
tinued to  act  as  justice,  although  the  constitution  of  Massachusetts 
provided  that,  upon  accepting  another  office,  that  of  justice  should 
become  vacant;  but  the  court,  by  Justice  Gray,  said:  "If  Mr.  Hawkes, 
by  taking  his  seat  in  the  house  of  representatives,  ceased  to  be  a  jus- 


OFFICERS   DE   FACTO  157 

tice  de  jure,  he  was,  by  color  of  the  usual  signs  of  judicial  office,  sit- 
ting in  the  court,  using  its  seal,  and  attended  by  his  clerk,  and,  no 
other  person  having  been  appointed  in  his  stead,  a  justice  of  the  peace 
de  facto."    Decisions  of  like  import  may  be  found  in  every  state. 

Smith  being  a  commissioner  de  facto  when  he  voted  for  the  ordi- 
nance, it  must,  upon  the  application  of  well-settled  legal  principles,  be 
held  valid  and  effective  as  to  the  rights  of  the  public  and  third  per- 
sons. In  Mitchell  v.  Tolan,  33  N.  J.  Law,  195,  Justice  Depue  said : 
"Premising  that  an  officer  is  one  who  exercises  the  duties  of  an 
office  under  color  of  right,  by  virtue  of  an  appointment  or  election 
to  that  office,  as  distinguished  on  the  one  hand  from  a  mere  usurper 
of  an  office,  and  on  the  other  from  an  officer  de  jure,  the  acts  of  an 
officer  de  facto  are  valid,  as  far  as  the  rights  of  the  public  or  third 
persons  are  concerned."  In  Woodside  v.  W'agg,  71  Me.  207,  it  was 
held  that  "a  person  exercising  the  functions  of  a  valid  public  office 
by  color  of  right  will  be  deemed  to  be  an  officer  de  facto,  and  his  acts 
will  protect  third  persons,  although  he  has  legally  forfeited  his  office 
by  the  acceptance  of  an  incompatible  one."  In  State  v.  Carroll,  38 
Conn.  449,  9  Am.  Rep.  409,  it  was  said :  "The  de  facto  doctrine  was 
introduced  into  the  law  as  a  matter  of  policy  and  necessity,  to  pro- 
tect the  interests  of  the  public  and  of  individuals,  where  those  inter- 
ests were  involved  in  the  official  acts  of  persons  exercising  the  duties 
of  an  office  without  being  lawful  officers.     *     *     * 

But  this  legal  protection  is  not  afforded  where  the  defects  in  the 
title  of  the  officer  are  notorious,  and  such  as  to  make  those  relying 
on  his  acts  chargeable  with  such  knowledge.  What,  then,  may  be  con- 
sidered notice  sufficient  to  warn  third  jiersons  and  the  j)ublic?  The 
expiration  of  the  term  of  an  officer,  and  the  appointment  or  election 
and  qualification  of  his  successor;  the  resignation  of  a  public  offi- 
cer; the  abolition  of  the  office  itself  by  an  act  of  the  legislature;  the 
refusal  of  the  board  or  legislative  body  of  which  the  officer  is  a  mem- 
ber to  recognize  him;  or  the  judgment  of  a  court  against  the  title 
of  the  officer, — are  such  facts  as  third  persons  and  the  public  arc, 
as  a  general  rule,  required  to  take  notice  of.  But  in  this  case  none  of 
these  facts  existed,  but  just  the  contrary  were  known  to  every  citizen 
of  Jersey  City.  All  knew  that  Smith  had  been  legally  elected;  that 
he  had  not  resigned  ;  that  his  term  had  not  expired ;  that  no  court 
had  f|UCstioncd  his  right  to  serve;  that  no  one  claimed  a  right  to  his 
seat;  that  the  board  had  not  been  abolished;  that  the  members  rec- 
ognized him  as  one  of  their  number;  and  that  he  took  part  in  their 
proceedings.  All  of  these  things  were  enough  to  conrirm  the  l)ilief 
of  third  ])ersons  and  the  public  in  vSniith's  right  to  serve  tluiii.  If  it 
was  publicly  known  that  he  was  cokjiiel  of  the  4th  regiment,  it  was 
(|uitc  as  publicly  knfuvn  on  the  3d  of  October,  when  the  ordinance 
was  adopted,  that  the  war  with  Spain  had  ended,  and  only  the  terms 
of  a  formal  treaty  of  peace  were  being  considered.  Whether  he 
had  in  fact  accepted  the  office  of  colonel,  and  what  the  nice  distinc- 


158  OFFICERS,  AGENTS,  AND    EMPLOYES 

tioiis  are  between  tie  jure  and  de  facto  officers,  they  could  not  be  ex- 
pecleil  to  know,  nor  were  they  bound  to  know,  before  accepting  the 
benefits  of  anv  ordinance  he  might  by  his  vote  assist  in  passing.  • 

Another  significant  proof  of  the  general  acquiescence  of  the  public 
in  Smith's  exercise  of  the  office  appears  in  the  fact  that  the  mayor  of 
the  city,  whose  veto,  as  printed  in  the  record,  manifests  great  hos- 
tility to  the  ordinance,  well  knew  that  the  four  votes  that  first  passed 
it  could  pass  it  over  his  veto,  and  who  had  the  power  to  fill  a  vacancy 
in  the  board,  if  he  believed  that  any  existed,  had  failed  to  make  any 
attempt  to  appoint  a  successor,  although  he  had  been  mustered  into 
service  in  July.  The  mayor,  as  the  chief  representative  of  the  public, 
had,  so  far  as  the  record  shows,  acquiesced  in  his  exercise  of  the 
office,  and  in  his  veto  message  does  not  claim  that  any  illegal  vote  was 
cast  for  the  ordinance.     *     *     * 

There  are  no  facts  in  this  case  to  justify  us  in  relaxing  the  wise 
and  ancient  rule,  so  deeply  rooted  in  public  policy,  that  the  acts  of 
de  facto  officers,  holding  under  color  of  a  title  originally  lawful,  when 
acting  in  good  faith,  will  protect  third  persons  and  the  public  in  their 
dealings  with  them,  whether  serving  alone  or  as  members  of  a  gov- 
erning or  legislative  body.     *     *     * 

But  this  case  rests  entirely  upon  the  question  whether  Smith,  when 
he  voted  for  the  ordinance  in  dispute,  was  a  commissioner  de  facto, 
and  his  acts,  therefore,  valid,  as  far  as  the  rights  of  third  parties  and 
the  public  are  concerned.  We  hold  that  he  was  such  an  officer,  and 
that  the  ordinance  is  valid.  This  conclusion  results  in  a  reversal  of 
the  judgment  of  the  supreme  court  setting  aside  the  ordinance. 


IV.  Salary  « 


MARQUIS  V.  CITY  OF  SANTA  ANA. 

(Supreme  Court  of  California,  1894.     103  Cal.  661,  37  Pac.  650.) 

Action  by  W.  H.  Marquis  against  the  city  of  Santa  Ana  for  salary 
as  assessor.     Judgment  for  plaintifif.     Defendant  appeals. 

Harrison,  J.'^  The  plaintifif  was  elected  to  the  office  of  city 
assessor  of  the  defendant  on  the  13th  of  April,  1891,  and  entered 
upon  the  duties  of  his  office  April  20,  1891.  Previous  to  his  election, 
viz.  March  16,  1891,  the  salary  of  that  office  had  been  fixed  by  an 
ordinance  of  the  city  at  $375  per  year,  payable  one-half  thereof  on 
the  first  Monday  of  July,  and  one-half  thereof  on  the  first  Monday 
of    September.     March   2,    1891,  the  legislature   passed   an   act    (St. 

6  For  discussion  of  principles,  see  Cooley,  Mun.  Corp.  §  61. 

7  Part  of  the  opinion  is  omitted. 


SALARY  159 

1891,  p.  22)  providing  that  in  cities  in  this  state,  excepting  municipal 
corporations  of  the  first,  second,  third,  and  fourth  classes,  and  cities 
operating  under  a  freeholders'  charter,  the  assessment  of  property 
made  by  the  county  assessor  might  be  made  the  basis  of  municipal 
taxation.  The  act,  however,  contained  the  following  proviso:  '"Pro- 
vided, however,  that  the  provisions  of  this  act  shall  not  apply  to  or 
be  in  force  in  any  city  or  municipal  corporation  until  its  board  of  trus- 
tees, common  council,  or  other  legislative  body,  shall  have  passed  an 
ordinance  electing  to  avail  itself  of  the  provisions  of  this  act,  and 
filed  a  certified  copy  of  the  same  with  the  auditor  of  the  county  in 
which  such  municipal  corporation  or  city  is  situated  on  or  before  the 
first  Monday  in  March  of  each  year." 

The  defendant  is  a  municipal  corporation  of  the  fifth  class,  and 
on  February  15,  1892,  through  its  board  of  trustees  passed  an  ordi- 
nance electing  to  avail  itself  of  the  provisions  of  the  above  act,  and 
by  the  same  ordinance  repealed  its  former  ordinance  fixing  the  com- 
pensation of  the  city  assessor.  A  copy  of  this  ordinance  was  filed 
with  the  county  auditor  of  Orange  county,  in  which  the  city  of  Santa 
Ana  is  situated,  on  February  23,  1892.  March  21,  1892,  the  defendant 
passed  an  ordinance  repealing  a  prior  ordinance  providing  for  a  street 
poll  tax;  so  that  all  of  the  duties  imposed  upon  the  assessor  by  virtue 
of  any  city  ordinance  were  taken  away.  After  the  passage  of  tlnese 
ordinances,  the  plaintiff  performed  no  duty  as  city  assessor,  except 
to  make  out  the  list  of  male  persons  over  the  age  of  21  years  residing 
within  the  limits  of  the  city,  required  by  section  787  of  the  municipal 
government  act.  The  defendant  refused  to  allow  or  pay  to  the  plain- 
tiff any  salary  for  the  second  year  of  his  incumbency  of  the  office, 
and  he  thereupon  brought  this  action.     *     *     * 

2.  Section  755  of  the  municipal  government  act  (St.  1883,  p.  251) 
provides:  "The  clerk,  treasurer,  assessor,  marshal,  city  attorney  and 
recorder  shall  severally  receive  at  stated  times  a  compensation  to 
be  fixed  by  ordinance  by  the  board  of  trustees,  which  compensation 
shall  not  be  increased  or  diminished  after  their  election,  or  during 
their  several  terms  of  office."  The  power  of  the  legislature  to  abolish 
the  office  of  city  treasurer,  or  to  change  the  compensation  of  the 
officer,  or  its  power  to  authorize  the  city  to  change  his  compensation 
during  his  term  of  office,  is  not  presented  in  the  present  case,  as  the 
legislature  has  neither  abolished  the  office,  nor  changed  the  comi)en- 
sation,  nor  given  to  the  city  the  authority  to  make  such  change.  As 
the  power  of  the  defendant  to  fix  or  change  the  salary  of  its  officers 
rests  entirely  upon  statute,  the  exercise  of  this  power  is  subject  to 
all  the  limitations  contained  in  the  statute. 

Tile  plaintiff  was  elected  to  the  office  of  city  assessor  after  the 
adoption  of  the  ordinance  fixing  the  amount  of  his  salary,  and  the 
limitation  in  the  above  section  that  his  compensation  shall  not  be  in- 
creased or  diminished  during  his  term  of  office  renders  the  act  of 
the   defendant   repealing   the    ordinance   fixing   his    salary    nugatory. 


160  OFFICERS,  AGENTS,  AND    EMPLOYES 

As  the  dcfcmlant  could  not  directly,  by  express  ordinance  for  that 
purpose,  diminish  the  amount  of  his  salary,  the  same  result  could  not 
be  accomplished  by  it  indirectly,  either  by  accepting  the  provisions 
of  the  act  of  March  2,  1891,  or  by  doing  away  with  the  necessity 
for  his  services  through  its  adoption  of  the  ordinance  abolishing  the 
street  poll  tax.  The  Vight  of  an  officer  to  the  salary  fixed  by  law 
for  that  office  is  not  impaired  by  any  change  that  may  be  made  in  the 
duties  of  the  office,  or  even  by  an  entire  cessation  of  those  duties,  so 
long  as  the  office  itself  remains  in  existence. 

3.  It  is  urged  by  the  appellant  that  its  election  to  avail  itself  of 
the  provisions  of  the  act  of  March  2,  1891,  had  the  effect  to  abolish 
the  office  of  city  assessor.  As  the  office  is,  however,  created  by  the 
legislature,  it  could  not  be  directly  abolished  by  the  city;  much  less 
could  its  abolition  be  implied  from  any  act  that  did  not  in  terms  pur- 
port to  abolish  it.  The  office  is  provided  fov  in  section  752  of  the 
municipal  government  act,  which  has  never  beeK  repealed;  and  the 
act  of  March  2,  1891,  instead  of  sustaining  the  suggestion  of  an  im- 
plied repeal  of  that  section,  expressly  declares  that  its  provisions  shall 
not  be  given  force  in  any  city  until  it  shall  have  passed  an  ordinance 
electing  to  avail  itself  thereof,  on  or  before  the  first  Monday  in  March 
of  each  year,  thus  implying  that  the  office  continues  to  exisV  The 
duties  of  the  city  assessor  are  fixed  by  section  787  of  the  municipal 
government  act;  and  while  it  may  be  conceded  that  the  election  bv 
the  defendant  to  avail  itself  of  the  provisions  of  the  act  of  March 
2,  1891,  did  away  with  the  necessity  for  the  performance  by  th.e 
assessor  of  any  acts  connected  with  the  assessment  of  property,  there- 
tofore imposed  upon  him,  so  long  as  such  election  remained  in  forc^ 
it  does  not  follow  that  the  office  of  assessor  was  thereby  abolished. 
Section  787  prescribes  as  one  of  the  duties  of  this  office  that  "the  as  ■ 
sessor  shall  during  said  term  also  make  a  list  of  all  male  persons  f  •- 
siding  within  the  limits  of  such  city  over  the  age  of  twenty-one  years, 
and  shall  verify  said  list  by  his  oath,  and  shall  on  or  before  the  first 
Monday  of  August  in  each  year  deposit  the  same  with  the  city  clerk." 

It  is  urged  by  the  defendant  that,  inasmuch  as  the  only  apparent 
object  for  which  this  list  is  to  be  made  is  to  form  the  basis  for  col- 
lecting an  annual  street  poll  tax,  the  repeal  of  the  ordinance  pro- 
viding for  the  street  poll  tax  relieved  the  plaintiff  from  the  duty  of 
preparing  this  list.  The  statute,  however,  under  which  he  holds  his 
office,  makes  the  preparation  of  this  list  one  of  his  official  duties ; 
and  we  are  not  at  liberty  to  assume  that  the  only  object  of  this  re- 
quirement was  to  enable  the  city  to  collect  a  street  poll  tax,  or  that  he 
would  be  justified  in  omitting  this  official  duty  prescribed  by  the  stat- 
ute, even  though  the  city,  by  its  ordinance,  rendered  his  act  in  pre- 
paring it  of  no  avail  to  it.  The  city  had  still  the  power  to  pass  an 
ordinance  imposing  this  tax,  and  might  then  avail  itself  of  the  list 
thus  prepared ;  but,  whether  the  duties  have  been  increased  or  dimin- 
ished, or  entirely  dispensed  with,  so  long  as  the  office  remains,  the 


REMOVAL  161 

salary  affixed  thereto  is  an  incident  of  the  office,  and  must  be  paid 
to  the  incumbent.  We  have,  however,  seen  that  the  office  has  not 
been  abohshed;  and  the  defendant  does  not  contend  that,  if  the  of- 
fice is  still  in  existence,  the  respondent  is  not  its  incumbent. 

It  follows  that  he  is  entitled  to  the  salary  attached  to  the  office  at 
the  time  of  his  election,  and  that  the  action  of  the  court  in  holding 
this  defense  to  be  unavailing  was  correct.    The  judgment  is  affirmed. 


V.  Removal  ^ 


STATE  ex  rel.  HART  v.  CITY  OF  DULUTH. 

(Supreme  Court  of  Minnesota,  1893.    53  Minn.  238,  55  N.  W.  118,  39  Am.  St. 

Rep.   595.) 

Certiorari  in  the  name  of  the  state,  on  relation  of  James  Hart,  Jr., 
and  others,  against  the  common  council  of  the  city  of  Duluth  and 
others,  to  review  and  quash  the  action  of  respondents  in  removing 
relators  from  the  office  of  fire  commissioners. 

Mitchell,  J.^  By  the  charter  of  the  city  of  Duluth,  all  powers 
and  duties  connected  with,  and  incident  to,  the  government  and  dis- 
cipline of  the  fire  department  of  the  city  are  vested  in  three  commis- 
sioners, called  the  "Board  of  Fire  Commissioners,"  who  have  entire 
control  of  the  department,  including  the  appointment  and  discharge  of 
all  employes  connected  with  it,  and  making  their  own  rules  and  reg- 
ulations for  the  government  of  the  same.  These  commissioners  are 
"on  nomination  of  the  mayor,"  "appointed  by  the  common  council," 
and  hold  their  office  for  the  term  of  three  years.  The  charter  provides 
that  "any  member  of  said  board  may  at  any  time  be  removed  by  a 
vote  of  two  thirds  of  all  the  members  elect  of  the  common  council  of 
said  city  for  sufficient  cause:  *  *  *  provided,  that  the  said  com- 
mon council  shall  i)reviously  cause  a  copy  of  the  charges  preferred 
against  such  member  sought  to  be  removed,  and  notice  of  the  time  and 
place  of  hearing  the  same,  to  be  served  on  him  at  least  ten  days  pre- 
vious to  the  day  so  assigned,  and  opportunity  be  given  him  to  make  his 
defense  personally  or  \)y  ccnmsel."  It  is  here  sought,  by  certiorari,  to 
review  the  proceedings  of  the  common  council  in  assuming  to  re- 
move the  relators  from  the  office  of  fire  commissioners.     *     *     * 

The  first  contention  of  relators  is  that  the  common  council  never 
acquired  jurisdiction,  because  the  notice  of  hearing  and  the  copy  of 
the  charges  were  not  served  on  them  as  recjuired  by  llic  charter.  The 
particular  objection  is  that,  when  the  service  was  made  on  them,  the 

«  For  flisnissioii  of  priiuiplfs,  see  Cooh-y,  Miin.  Corp.  §  03. 
•  I'.'irt  of  the  oi)inioii  is  oiiiitfcd. 
COOLEY  Ca-ses  Mun.C. — 11 


1  r.2  OFFICERS,  AGENTS,  AND    EMPLOYES 

resolution  of  the  common  council  preferring  these  charges  against 
them  had  neither  been  approved  by  the  mayor,  nor  passed  over  his 
veto,  as  required  by  section  1,  c.  3,  of  the  city  charter.  There  is  no 
merit  in  this  point.  Under  the  charter  the  power  of  removal  from 
office  is  vested  solely  in  the  common  council,  and  the  mayor  has  no 
power  over,  or  control  of,  their  proceedings  in  presenting  or  in- 
vestigating charges  against  a  city  official  with  a  view  to  removal  from 
office.  Their  action  in  preferring  charges  against  relators  was  not 
such  an  ordinance  or  resolution  as  comes  within  the  purview  of  sec- 
tion 1,  c.  3,  and  did  not  require  the  approval  of  the  mayor  before  it 
took  effect. 

The  next  question  is  whether  the  charges  presented  were  sufficient 
in  law  to  constitute  a  cause  for  removal, — whether  they  were  sufficient 
in  form  and  substance  to  authorize  the  common  council  to  proceed. 
"Cause,"  or  "sufficient  cause,"  means  "legal  cause,"  and  not  any  cause 
which  the  council  may  think  sufficient.  The  cause  must  be  one  which 
specially  relates  to  and  affects  the  administration  of  the  office,  and 
must  be  restricted  to  something  of  a  substantial  nature  directly  af- 
fecting the  rights  and  interests  of  the  public.  The  cause  must  be  one 
touching  the  qualifications  of  the  officer  or  his  performance  of  its 
duties,  showing  that  he  is  not  a  fit  or  proper  person  to  hold  the  office. 
An  attempt  to  remove  an  officer  for  any  cause  not  affecting  his  com- 
petency or  fitness  would  be  an  excess  of  power,  and  equivalent  to  an 
arbitrary  removal.  In  the  absence  of  any  statutory  specification  the 
sufficiency  of  the  cause  should  be  determined  with  reference  to  the 
character  of  the  office,  and  the  qualifications  necessary  to  fill  it. 
Bagg's  Case,  11  Coke,  93b;  Rex  v.  Richardson,  1  Burrows,  517-540; 
State  v.  Love,  39  N.  J.  Law,  14;  State  v.  McGarry,  21  Wis.  496; 
State  V.  Common  Council,  9  Wis.  254;  People  v.  Thompson,  94  N. 
Y.  451.  While  the  charges  need  not  be  stated  with  the  technical  nicety 
or  formal  exactness  required  in  pleadings  in  courts,  yet  they  must  be 
specifically  stated  with  substantial  certainty.  The  specifications  of  the 
alleged  causes  should  be  formulated  with  such  reasonable  detail  and 
precision  as  shall  inform  the  incumbent  what  dereliction  of  duty  is 
urged  against  him.  There  should  be  a  statement  of  charges  with  a 
specification  of  facts  constituting  a  sufficient  cause  for  removal,  suffi- 
ciently distinct  to  apprise  the  officer  of  the  grounds  upon  which  the 
charges  are  based.  Andrews  v.  King,  77  Me.  224 ;  People  v.  Thomp- 
son, supra;  Dill.  Mun.  Corp.  §  255.  The  sufficiency  and  reasonable- 
ness of  the  cause  of  removal  are  questions  for  the  courts.  Dill.  Mun. 
Corp.  §  252,  and  cases  cited.  This  has  been  the  settled  law  ever  since 
Bagg's  Case,  supra,  and  we  are  not  aware  of  any  respectable  authority 
to  tlie  contrary.  Of  course,  cases  (many  of  which  are  cited  by  re- 
spondents) where  an  officer  or  body  was  vested  with  an  absolute  power 
of  removal  at  discretion  are  not  in  point. 

Upon  examination  of  the  charges  in  this  case  we  are  clearly  of 
opinion  that  they  are  not  sufficient  in  law.     Considering  them  as  a 


REMOVAL  163 

whole,  they  show  on  their  face  that  they  were  not  formulated  in  a  very 
judicial  frame  of  mind.  They  read  more  like  a  heated  hostile  dec- 
lamation than  a  calm  and  deliberate  statement  of  charges  with  a  view 
to  a  fair  investigation.  Many  of  them  are  mere  glittering  generalities, 
without  any  statement  or  specification  of  facts ;  such  as,  for  example, 
"using  their  official  positions  to  gratify  their  personal  feelings  and 
prejudices;"'  '"that  neither  ability,  impartiality,  nor  sense  of  justice 
characterize  their  management  of  one  of  the  most  important  branches 
of  the  city  government;"  "that  the  gratification  of  their  personal  spites 
and  prejudices  is  the  paramount  motive  often  actuating  and  controlling 
them  in  the  supposed  discharge  of  their  duties ;"  "that  they  have  no 
just  appreciation  of  the  responsibilities  that  should  characterize  the 
discharge  of  the  duties  of  the  important  ofiice  of  fire  commissioner," 
etc.  It  hardly  need  be  said  that  such  general  accusations  as  these  are 
entirely  lacking  in  any  specification  of  facts  to  apprise  any  one  of  the 
grounds  of  the  charges  which  he  is  called  on  to  meet. 

Some  of  the  charges,  such  as  that  "the  reasonable  recommendations 
and  requests  of  the  common  council  are  treated  with  the  utmost  con- 
tempt," have  no  relation  whatever  to  the  administration  of  the  office 
of  fire  commissioner,  and  remind  us  of  some  of  the  charges  in  Bagg's 
Case.  The  first  part  of  the  fifth  charge,  viz.  failure  to  make  montlily 
reports  to  the  common  council,  as  required  by  the  charter,  was  virtual- 
ly abandoned,  no  attempt  having  been  made  to  substantiate  it,  and 
hence  may  be  left  out  of  account  altogether.  The  only  charges  that 
even  attempt  to  state  any  specific  cause  for  removal  are  the  fourth 
and  the  last  part  of  the  fifth.  Indeed,  these  are  the  only  ones  which 
counsel  for  respondents  seriously  attempts  to  support.  The  fourth 
relates  to  the  discharge  of  officers  of  the  fire  department  without 
cause,  or  from  improper  motives,  but  is  entirely  lacking  in  specifica- 
tions of  either  dates  or  names.  As  the  board  of  fire  commissioners 
has,  under  the  charter,  absolute  power  to  discharge  any  of  the  em- 
ployes or  officers  of  the  department  at  their  discretion,  and  may,  in 
the  performance  of  their  duties,  have  had  occasion  to  exercise  this 
power  frcf|uently,  so  general  and  indcfim'te  a  statement  is  not  sufficient 
to  advise  them  what  particular  acts  are  the  basis  of  the  charge.  The 
last  part  of  the  fifth  charge,  accusing  the  relators  generally  of  being 
"incompetent"  and  "inefficient,"  without  specifying  wherein  or  in  what 
respect,  is  also  entirely  too  vague  and  general.  We  agree  with  counsel 
that  "incompetency"  anrl  "inefficiency"  in  the  discharge  of  official  duty 
may  be  good  groun^is  for  removal,  and  that  it  may  not  be  necessary 
to  specify  in  detail  particular  acts  or  facts.  I'ut  these  words  are  so 
general  that  they  may  mean  anything  or  everything  which  might  con- 
stitute good  cause  for  removal.  For  example,  incompetency  might 
result  from  physical  disability,  from  mental  disability,  or  from  lack 
of  integrity,  etc.  So,  inefficiency  might  consist  of  habitual  neglect  of 
duty,  incapacity  to  preserve  discipline,  or  of  a  variety  of  things.  Hence, 
while  it   is  not  required  to  go  into  details,  yet   the  charges  ought  at 


1(U  OFFICERS,  AGENTS,  AND    EMPLOYES 

least  to  advise  the  officer  in  what  respect  he  is  claimed  to  be  incom- 
petent or  inefficient. 

Our  conclusion  is  that  none  of  the  charges  relied  on  are  sufficient 
in  law.  This  renders  it  unnecessary  to  consider  the  evidence  at  all. 
We  may  say,  however,  that  a  perusal  of  it  impresses  us  with  the  feel- 
ing that  it  furnished  no  reasonable  basis  for  the  action  of  the  council 
in  removing  the  relators  from  office.  It  is  perfectly  apparent  that 
this  whole  trouble  grew  out  of  a  foolish  quarrel  between  the  common 
council  and  the  board  of  fire  commissioners,  over  the  suspension  by  the 
latter  of  a  fireman  by  the  name  of  Twaddle.  The  proceedings  of  the 
common  council  in  the  matter  are  quashed. 


VI.  Personal  Liability — Contracts  ** 


LAWRENCE  v.  TOOTHAKER. 

(Supreme  Court  of  New  Hampshire,  1908.     75  N.  H.  148,  71  Atl.  534,  23  L.  R. 

A.    [N.    S.]    428.) 

Action  by  Archibald  I.  Lawrence  against  Oliver  H.  Toothaker  and 
others.  Verdict  for  plaintiff,  and  case  transferred  from  the  superior 
court  on  defendants'  exception.  The  evidence  tended  to  show  the 
following  facts :  The  plaintiff  is  an  architect,  and  the  defendants  con- 
stituted  the  board  of  education  in  Berlin  at  the  time  of  the  contract  in 
question.  The  defendants  requested  the  plaintiff  to  make  plans  for  a 
school  building  to  take  the  place  of  one  which  had  been  burned,  and, 
after  some  negotiations  between  the  parties,  a  contract  was  agreed 
upon  for  his  employment.  Soon  afterward  the  defendants  notified 
the  plaintiff  to  cease  w^orking  on  the  plans,  as  they  did  not  wish  to  use 
them.  He  replied  that  he  should  hold  them  to  the  contract.  He 
charged  his  services  to  the  city  of  Berlin,  and  understood  that  he  was 
dealing  with  the  board  of  education.  In  a  suit  against  the  city  on  this 
account  he  was  unsuccessful,  upon  the  ground  that  the  board  of 
education  had  no  authority  to  bind  the  city.  Both  parties  acted  in 
good  faith  in  making  the  contract. 

Walkkr,  J.  The  evidence  is  not  sufficient  to  support  a  finding 
that  at  the  time  the  contract  was  made  the  defendants  intended  to  bind 
themselves  personally,  or  that  the  plaintiff  understood  they  did.  No 
express  promise  on  the  part  of  the  defendants  was  made,  and  it  was 
not  suggested  by  the  plaintiff  that  the  defendants  were  to  be  deemed 
the  responsible  contracting  parties.  Nor  is  there  any  evidence  that 
the  defendants  suppressed  any  material  facts  relating  to  their  author- 

10  For  di-scussion  of  priuciples,  see  Cooley,  Mun.  Coi-p.  §§  G5,  67. 


PERSONAL   LIABILITY CONTRACTS  165 

ization  to  bind  the  city.  Both  parties  acted  in  good  faith,  upon  the 
assumption  that  the  defendants  were  authorized  to  make  the  contract 
as  representatives  of  the  city;  and,  in  accordance  with  that  under- 
standing, the  plaintiff  gave  credit  to  the  city. 

It  may  be  conceded  that  the  defendants,  as  the  board  of  education, 
had  no  authority  to  contract  with  the  plaintiff  for  and  in  behalf  of 
the  city,  and  that  the  attempted  exercise  of  such  authority  was  futile. 
But  it  does  not  follow  that  the  defendants  bound  themselves  to  pay 
for  the  plaintiffs  services.  Ogden  v.  Raymond,  22  Conn.  379,  384,  58 
Am.  Dec.  429.  The  board's  want  of  statutory  power  to  do  what  it 
attempted  to  do  was  as  within  the  cognizance  of  the  plaintiff  as  that 
of  the  defendants.  Richards  v.  Columbia,  55  N.  H.  96,  99;  Sprague 
V.  Cornish,  59  X.  H.  161.  The  plaintiff  was  chargeable  with  knowl- 
edge of  their  official  limitations ;  and,  having  voluntarily  contracted 
with  them  in  their  official  capacity  and  given  credit  to  the  city  for  the 
performance  of  the  contract,  he  is  in  no  position  to  claim  that  the  de- 
fendants are  personally  responsible  on  the  contract,  in  the  absence  of 
an  express  promise  by  them  to  incur  that  responsibility,  unless  the 
law  would  imply  a  promise  of  guaranty  that  they  had  the  requisite 
power.  But  "where  all  the  facts  and  circumstances  surrounding  the 
case  are  known  to  both  the  agent  and  third  party,  but  there  is  a  mutual 
mistake  as  to  a  matter  of  law — as  the  principal's  liability  or  the  legal 
effect  of  the  agent's  written  authority — the  agent  cannot  be  held  per- 
sonally responsible  by  reason  of  the  mere  fact  that  the  principal  can- 
not be  held,  unless  the  agent  by  some  apt  expression  guarantees  the 
contract  or  assumes  it  himself."  2  CI.  &  Sk.  Ag.  582b;  Jefts  v.  York, 
10  Cush.  (Mass.)  392. 

And  this  principle  of  law  is  equally  applicable  when  public  officers, 
like  the  defendants,  assume  to  bind  the  public  by  their  contracts  with 
third  parties.  Their  authority  is  statutory;  and  whether  their  at- 
tempted exercise  of  it  in  a  particular  case  is  authorized  is  ordinarily 
a  question  of  law,  which  the  other  contracting  party  has  ample  oppor- 
tunity to  investigate  and  decide  for  himself.  If  for  any  reason  he  is 
unwilling  to  incur  that  risk,  an  express  guaranty  by  the  other  that 
he  acts  within  the  scope  of  his  authority  would  be  necessary  to  render 
the  latter  liable  on  the  contract.  Underhill  v.  C.ibson,  2  N.  II.  352,  9 
Am.  Dec.  82;  Brown  v.  Rundlett,  15  N.  II.  300;  Farnani  v.  Davis, 
32  N.  H.  302.  Cases  like  Weare  v.  Gove,  44  N.  H.  196,  do  not  con- 
flict with  this  result.  It  was  there  expressly  recognized  (page  197  of 
44  X.  II.)  that  the  agent  caimot  be  held  "where  the  promisee,  being 
fully  informed  of  the  facts  upon  which  the  assumed  authority  rests, 
forms  his  own  juflgmcni,  and  contracts  for  and  relies  upon  the  en- 
gagement of  the  principal  alone.  In  such  a  case  it  would  be  unjust 
that  the  agent  should  be  bound  becau.se  such  was  not  the  contract." 

As  the  rci)orted  evidence  negatives  the  idea  that  the  parties  intended 
that  the  defendants  should  he  individually  liable  on  the  contract,  and 


1G6  OFFICERS,  AGENTS,  AND    EMPLOYES 

as  there  is  no  evidence  that  they  guaranteed  their  authority,  or  were 
guihy  of  any  fraud  upon  the  plaintiff,  the  defendants'  motion  for  a 
verdict  should  have  been  granted.  Exception  sustained.  Verdict  set 
aside.    All  concurred. 


VII.  Personal  Liability— Torts  *>^ 


BOUTTE  V.  EMMER. 

(Supreme  Court  of  Louisiana,  1891.    43  La.  Ann.  980,  9  South.  921,  15  L.  K. 

A.  63.) 

BrEaux,  J.  Plaintiff  sues  to  recover  $10,000  exemplary  damages 
from  the  defendant,  who  is  the  mayor  of  the  town  of  New  Iberia. 
On  the  24th  of  December,  1889,  the  defendant  had  him  arrested  and 
imprisoned  from  about  5  o'clock  in  the  evening  to  about  8  o'clock 
a.  m.  of  the  day  following.  Plaintiff  complains  of  injury,  in  that  he 
was  thus  arrested  without  any  process  of  law,  and  placed  in  jail  mali- 
ciously, and  without  probable  cause;  that  just  preceding  his  arrest 
the  defendant  made  an  assault  on  him. 

The  plaintiff  is  a  constable.  He  had  arrested  two  negroes,  and  had 
taken  them  before  a  magistrate  to  answer  to  the  charge  of  fighting  and 
disturbing  the  peace.  Without  formal  examination  into  the  accusation, 
they  were  ordered  to  be  released,  and  to  pay  one  dollar  each  to  the 
constable  for  having  made  the  arrest.  He  left  the  office  of  the  justice 
of  the  peace  with  the  negroes,  intent  on  collecting  the  two  dollars, 
and  threatening  incarceration  if  the  amount  was  not  found.  He  was 
with  these  men  some  time  in  the  street.  His  conduct,  a  witness  tes^ 
tifies,  was  not  orderly.  Four  witnesses  testify  that  he  was  at  the 
time  under  the  influence  of  intoxicants.  An  officer  himself,  he  should 
have  been  sober.  The  defendant  met  the  plaintiff,  and  spoke  to  him, 
at  first  remonstratingly,  is  the  testimony  of  certain  witnesses.  Soon 
after  the  words  of  each  became  intemperate. 

Under  an  ordinance  of  the  council,  the  mayor  is  vested  with  au- 
thority to  punish  disorderly  persons  by  imprisonment  for  a  short  time, 
or  the  imposition  of  a  fine,  or  both.  In  discharging  the  functions  of 
his  office,  he  has  certain  discretion.  Unless  he  acts  arbitrarily,  and 
beyond  the  pale  of  his  office,  he  cannot  be  made  to  pay  damages. 

The  plaintiff's  first  grievance,  upon  which  he  bases  some  right  of 
action,  is  that  he  was  arrested  without  a  warrant.  This  ground  does 
not  commend  itself,  for  a  warrant  need  not  issue  prior  to  arresting 
a  person  who  openly  commits  a  breach  of  the  peace  such  as  plaintiff 
was  charged  with  having  committed,  and  such  as  the  preponderance 

11  For  discussion  of  principles  see  Cooley,  Mun.  Corp.  §§  66,  67. 


PERSONAL   LIABILITY — TORTS  167 

of  evidence  sustains  with  reference  to  the  imprisonment.  The  peace 
and  good  order  of  the  community  requires  it,  and  frequently  one  in- 
toxicated is  only  improved  by  the  experience,  and  restored  to  a  sober 
condition. 

The  attempt  made  to  sever  the  defendant,  for  the  purposes  of  this 
suit,  from  his  office,  and  hold  him  responsible  personally,  must  fail. 
An  officer  will  not  be  held  responsible  personally,  unless  it  be  clearly 
proven  that  he  has  acted  arbitrarily  and  in  violation  of  law.  The  vio- 
lation and  arbitrariness  are  not  proven. 

Judgment  affirmed,  at  appellant's  costs. 


108  CONTRACTS 


CONTRACTS 
I.  Contracting  Agencies  * 


JEWELL  BELTING  CO.  v.  VILLAGE  OE  BERTHA. 

(Supreme  Court  of  Minnesota,  1903.     91  Minn.  9,  97  N.  W.  424.) 

Action  by  the  Jewell  Belting  Company  against  the  village  of  Bertha. 

Brown,  J.  Action  to  recover  the  value  of  certain  fire  extinguish- 
ing apparatus  alleged  to  have  been  purchased  of  plaintiff's  assignor  by 
defendant,  in  which,  on  trial,  the  court  below  directed  a  verdict  for 
defendant,  and  plaintiil^  appealed  from  an  order  denying  its  alterna- 
tive motion  for  judgment  notwithstanding  the  verdict,  or  for  a  new 
trial.    The  facts  are  as  follows : 

Defendant  is  an  incorporated  village  of  the  state,  and  on  the  9th 
of  January,  1902,  one  S.  S.  Smith,  doing  business  as  the  Minnesota 
Rubber  Company,  appeared  before  its  council  with  a  proposition  to  sell 
to  the  village  a  hand  pump  engine  for  extinguishing  fires  for  the  sum 
of  $585.  The  council  was  desirous  of  purchasing  an  apparatus  of  the 
kind,  and  had  previously  sought  terms  and  prices  from  manufacturers. 
After  the  submission  of  a  proposition  by  Smith,  the  council  adopted 
two  motions,  as  follows: 

"]\Iotion  made  and  seconded  that  Mr.  Smith  ship  his  hand  pump 
engine  fire  machine  subject  to  approval  of  village  council.  Motion 
carried  ;  all  members  voting  yes." 

"Motion  made  and  seconded  to  authorize  the  president  and  recorder 
to  enter  into  contract  with  Mr.  Smith  for  the  purpose  of  purchasing 
hand  pump  engine  and  other  articles,  as  per  statement  at  meeting  in 
council  room.     Motion  carried;    all  members  voting  yes." 

This  record  discloses  the  only  action  taken  by  the  council  in  refer- 
ence to  the  purchase  of  the  engine.  What  occurred  in  the  council 
room  between  the  passage  of  the  two  motions  just  quoted  does  not 
appear,  though  counsel  state  that  the  proposition  contained  in  the  first 
motion  was  not  accepted  by  Smith.  Pursuant  to  the  authority  con- 
tained in  the  second  motion,  the  president  and  recorder  entered  into  a 
formal  written  contract  with  Smith  by  which  they  contracted,  on  be- 
half of  the  village,  to  purchase  the  fire  apparatus,  agreeing  to  pay 
therefor  the  sum  of  $585 ;  and  by  this  contract  the  rights  of  the  parties 
must  be  determined. 

The  contract  so  entered  into  contained  a  provision  that  the  engine 
should  be  subject  to  test  trials  satisfactory  to  the  village  council  be- 

1  For  discussion  of  principles,  see  Cooley,  Mun.  Corp.  §  72. 


CONTRACTING    AGENCIES  169 

fore  acceptance.  Thereafter  Smith,  acting  under  the  contract,  shipped 
the  engine  to  the  village  by  railroad ;  but  the  village  council  refused, 
and  at  all  times  since  have  refused,  to  accept  or  receive  the  same. 
Smith,  subsequent  to  shipping,  and  after  the  arrival  of  the  engine  at 
Bertha,  appeared  and  offered  to  test  the  same  in  the  presence  of  the 
council,  but  the  latter  refused  to  take  part  in  it  or  carry  out  the  con- 
tract made  by  the  president  and  recorder.  Smith  afterward  assigned 
his  claim  under  the  contract  to  the  plaintiff  in  this  action. 

Several  questions  are  discussed  in  the  briefs  of  counsel,  but,  as  we 
view  it,  the  case  narrows  down  to  one  proposition,  namely,  whether 
the  village  council  could  delegate  authority  to  the  president  and  re- 
corder to  enter  into  a  contract  on  behalf  of  the  municipality  for  the 
purchase  of  the  engine.  If  such  authority  could  be  so  delegated,  plain- 
tiff is  entitled  to  recover;  otherwise  the  trial  court  was  justified  in 
directing  a  verdict  for  defendant,  for  it  is  not  shown  or  claimed  that 
the  contract  was  made  or  ever  ratified  by  the  village  council.  The 
village  council,  under  our  statutes,  is  the  governing  body  of  the  mu- 
nicipality, charged  with  the  management  of  its  affairs,  legislative  and 
administrative,  and  alone  clothed  with  power  and  authority  to  enter 
into  such  contracts  as  are  deemed  necessary  for  the  public  welfare. 
The  authorities  very  generally  hold  that  such  a  body  cannot  in  any 
case  delegate  to  a  member  or  committee  thereof  functions  or  preroga- 
tives of  a  legislative  or  administrative  character,  or  involving  the  exer- 
cise of  judgment  and  discretion.  Scollay  v.  Butte  Co.,  67  Cal.  249, 
7  Pac.  661 ;  House  v.  Los  Angeles  Co.,'  104  Cal.  73,  37  Pac.  796 ; 
Knight  V.  Eureka,  123  Cal.  192,  55  Pac.  768;  Walsh  v.  Denver,  11 
Colo.  App.  523,  53  Pac.  458;  Dillard  v.  Webb,  55  Ala.  468;  Blair  v. 
Waco,  75  Fed.  800,  21  C.  C.  A.  517;  Thomson  v.  Boonville,  61  Mo. 
282;  Matthews  v.  City  of  Alexandria,  68  Mo.  115,  30  Am.  Rep.  776; 
Attorney  General  v.  Lowell,  67  N.  H.  198,  38  Atl.  270 ;  Elyria  Gas  Co. 
v.  Elyria,  57  Ohio  St.  374,  49  N.  E.  335 ;  Foster  v.  Cape  May,  60  N. 
J.  Law,  78,  36  Atl.  10S9;  Phelps  v.  N.  Y.,  112  N.  Y.  216,  19  N.  E. 
408,  2  L.  R.  A.  626. 

Merely  ministerial  functions  may  be  delegated  to  an  officer  or  com- 
mittee, llarcourt  v.  Common  Council,  62  N.  J.  Law,  158.  40  Atl.  690. 
But  such  power  as  rcf|uires  the  exercise  of  judgment  and  discretion 
must  be  performed  by  the  body  itself.  Ministerial  functions  are  those 
that  are  absolute,  fixed,  and  certain,  in  the  performance  of  which  the 
board  or  officer  exercises  no  discretion  whatever.  Performance  may 
be  compelled  by  mandamus  or  other  api)ropriate  proceedings,  but  pow- 
ers and  duties  involving  an  exercise  of  judgment  and  discretion  can- 
not be  so  compelled.  This  principle  was  ap])lied  by  this  court  in  Min- 
neapolis Gaslight  Co.  v.  Minneapolis,  36  Minn.  159,  30  N.  W.  450.  hi 
that  case  it  api)cared  that  the  charter  of  the  city  of  Minneapolis  au- 
thorized the  city  council,  by  ordinance,  to  erect  lamps  and  provide  for 
lighting  the  city,  and  to  create,  alter,  and  extend  lighting  districts. 


170  CONTRACTS 

It  was  held  that  the  power  so  conferred  required  the  exercise  of  judg- 
ment and  discretion,  and  could  not  be  delegated  to  a  committee  of  the 
council,  either  in  respect  to  establishing  new  lamps  or  discontinuing 
those  already  established.  The  reason  for  this  rule  is  found  in  the 
fact  that  members  of  the  council  are  chosen  by  the  people  to  represent 
the  municipality,  charged  with  a  public  trust  and  the  faithful  perform- 
ance of  their  duties;  and  the  public  is  entitled  to  the  judgment  and 
discretion,  in  all  matters  where  such  elements  enter  into  transactions 
on  behalf  of  the  municipality,  of  each  member  of  the  body  upon  which 
authority  to  act  is  conferred. 

In  the  case  at  bar  the  purchase  of  a  fire  engine  to  aid  in  the  extin- 
guishment of  fires  occurring  in  the  village,  incurring  an  indebtedness 
in  such  purchase,  and  fixing  the  time  and  terms  of  payment,  involved 
the  exercise  of  the  sound  judgment  and  discretion  of  the  village  coun- 
cil ;  and,  within  the  authorities  cited,  the  power  to  so  contract  could 
not  be  delegated  to  the  president  and  recorder.  It  follows,  therefore, 
that  the  trial  court  was  right  in  directing  a  verdict  for  defendant. 
There  is  no  controversy  about  the  facts.  They  are  undisputed,  and 
substantially  as  we  have  outlined  above.  Of  the  want  of  authority  on 
the  part  of  the  council  to  authorize  the  president  and  recorder  to  enter 
into  the  contract,  Smith  was  required  to  take  notice.  All  persons  con- 
tracting with  municipal  corporations  are  conclusively  presumed  to 
know  the  extent  of  authority  possessed  by  the  officers  with  whom  they 
are  dealing.  20  Am,  &  Eng.  Ency.  Law  (2d  Ed.)  1183;  Newbery  v. 
Fox,  37  Alinn.  141,  33  N.  W.  333,  5  Am.  St.  Rep.  830. 

\\'hile  ordinarily  the  acts  of  public  officers  are  presumed  to  be  au- 
thorized by  law,  want  of  authority  affirmatively  appears  in  this  case, 
and  the  presumption  is  overcome  and  does  not  apply.    Order  affirmed. 


II.  Mode  of  Contracting  2 


BRODERICK  v.  CITY  OF  ST.  PAUL. 

(Supreme  Court  of  Minnesota,  1903.    90  Minn.  443,  97  N.  W.  118.) 

Action  by  John  F.  Broderick  against  the  city  of  St.  Paul  and  oth- 
ers.    Judgment  for  defendants,  and  plaintiff  appeals. 

Lewis,  J.^  This  action  was  brought  for  the  purpose  of  enjoining 
the  city  St.  Paul  and  certain  of  its  officers,  and  respondent  the  Cleve- 
land Vapor  Light  Company,  from  entering  into  and  carrying  into 
effect  the  terms  of  a  certain  contract  for  lighting  a  part  of  the  city 
streets.     *     *     * 

2  For  discussion  of  principles,  see  Cooley,  Mun.  Corp.  §  73. 

3  Part  of  tliis  opinion  and  all  of  the  dissenting  opinion  of  Brown,  J.,  are 
omitte<l. 


MODE   OF   CONTRACTING  171 

The  record  discloses  remarkable  haste  on  behalf  of  the  council  in 
calling  for  the  proposal,  in  considering  the  various  bids,  and  in  let- 
ting the  contract.  It  would  seem,  as  is  perhaps  usually  the  case,  that 
it  was  a  struggle  between  the  agents  of  different  lighting  companies 
to  see  which  could  exercise  the  most  influence  with  the  various  mem- 
bers of  the  council,  and  instead  of  giving  everybody  a  full  oppor- 
tunity to  be  heard  in  open  discussion  upon  all  of  the  points  involved, 
before  finally  awarding  the  contract,  the  matter  was  so  rapidly  rushed 
through  as  to  give  some  ground  for  suspicion  as  to  the  motive  of  the 
participants.  However,  the  trial  court  had  ample  opportunity  to  ob- 
serve the  witnesses  and  to  weigh  the  testimony,  and  it  found  that 
the  board  of  public  works  and  the  members  of  the  common  council 
acted  in  good  faith,  and  in  the  exercise  of  an  honest  judgment  and 
discretion.  Therefore  upon  that  branch  of  the  case  we  accept  the 
findings  of  the  court  as  final.  We  also  accept  the  conclusions  of 
the  court  to  the  effect  that  the  council  were  justified  in  rejecting  the 
bid  of  the  Western  Street  Lighting  Company,  although  the  lowest 
bidder.  This  leaves  for  consideration  the  question  whether,  in  ac- 
cepting the  bid  of  respondent  and  in  awarding  to  it  the  contract,  the 
common  council  proceeded  as  required  by  the  city  charter. 

Under  chapter  4  are  enumerated  the  general  powers  of  the  com- 
mon council.  In  section  7  it  is  provided  that  every  order,  resolution, 
or  ordinance  which  shall  pass  the  board  of  aldermen  and  the  as- 
sembly shall,  before  it  becomes  operative,  be  presented  to  the  mayor 
of  the  city  for  his  approval  or  rejection.  If  he  approves,  such  reso- 
lution goes  into  effect,  but.  if  returned  without  approval,  the  com- 
mon council  shall  proceed  to  reconsider  the  same,  and  if,  after  such 
discussion,  two-thirds  of  all  the  members  of  both  bodies  shall  agree 
to  pass  it,  it  shall  become  operative  notwithstanding  the  mayor's  veto : 
provided  that,  if  the  mayor  retains  the  resolution  without  returning 
it  for  the  period  of  five  days,  it  shall  become  operative,  and  provided 
that,  in  all  cases  where  the  original  action  of  the  common  council 
requires  a  two-thirds  or  greater  vote,  the  veto  of  the  mayor  shall  be 
effectual,  unless  overruled  by  a  four-fifths  vote  of  all  the  members 
of  the  council.  By  section  6  it  is  provided  that  no  appropriation  of 
money,  or  resolution,  order,  or  ordinance  for  the  payment  of  money, 
or  creating  any  pecuniary  liability,  shall  be  valid  or  operative  unless 
it  shall  have  passed  each  of  the  two  bodies  of  the  council  by  a  vote 
of  two-thirds  of  all  the  members  of  a  full  body,  taken  by  ayes  and 
noes,  and  entered  upon  the  record  of  the  proceedings.  By  section  8, 
that  every  order,  resolution,  or  ordinance  shall  Itr  published  in  the 
official  paper  before  the  same  shall  he  in  force,  and  shall  be  recorded 
by  the  city  clerk  in  books  provided  f(jr  that  purpose.  Under  the  pro- 
visions of  section  9,  the  entire  city  government  is  placed  in  the  hands 
of  the  common  council,  who  are  authorized  to  proceed  by  the  enact- 
ment of  proper  ordinances,  rules,  and  by-laws  for  such  purposes. 
By  section  10.  the  common  council  shall  have  authority,  by  ordinance, 


172  CONTRACTS 

resolution,  or  by-law,  among  other  things  (division  fiftieth),  "to  pro- 
vide for  lighting  the  city  and  all  public  buildings,  to  establish,  erect 
and  maintain,  and  cause  to  be  operated  gas  works,  electric  lighting 
plants,  or  other  works  for  lighting  the  city  streets,  public  grounds 
and  public  buildings.     *     *     * " 

From  these  provisions  it  appears  beyond  question  that  in  providing 
for  the  lighting  of  the  city  the  common  council  are  limited  in  their 
action  to  procedure  by  ordinance,  resolution,  or  by-law.  The  lan- 
guage is  clear  and  explicit.  The  scheme  of  government  is  framed 
upon  the  theory  that  all  important  matters  are  delegated  to  the  rep- 
resentatives of  the  municipality,  consisting  of  the  board  of  aldermen, 
the  assembly,  and  the  mayor.  It  contemplates  a  free  and  open  dis- 
cussion and  consideration  of  each  subject  of  enactment  by  each  body 
of  the  common  council  and  the  mayor;  and  the  object  is  to  not  only 
secure  free  deliberation  and  independence  by  such  bodies  and  the 
mayor,  but  also  to  provide  notice  to  the  public  of  their  various  proceed- 
ings. The  scheme  is  drawn  for  the  very  purpose  of  avoiding  that 
secrecy  and  speed  which  is  possible  by  motion,  and  without  submis- 
sion to  the  mayor,  and  without  the  publication  and  notice  necessary 
in  respect  to  a  resolution.  Such  being  the  evident  purpose  of  the 
charter  provisions  referred  to,  they  must  control  the  action  of  the 
common  council  in  respect  to  the  subject  under  consideration,  unless 
it  is  otherwise  provided. 

Chapter  15  contains  specific  direction  regarding  the  letting  of  con- 
tracts, and  section  1  reads :  "All  contracts  for  work  to  be  done  for 
the  city  of  St.  Paul,  or  for  the  purchase  of  property  of  any  kind, 
for  the  public  use  of  said  city,  except  as  otherwise  provided  for  in 
this  charter,  in  which  the  value  of  such  work  or  the  price  or  value 
of  such  property  shall  exceed  the  sum  of  two  hundred  (200)  dollars, 
shall  be  let  to  the  lowest  responsible  bidder,  reserving  to  the  council 
the  right  to  reject  all  bids.  In  such  case  the  common  council  shall 
require  a  notice  of  not  less  than  six  days  for  the  time  and  place  of 
letting  such  contract,  by  publication  in  the  official  paper  of  said  city, 
which  notice  shall  substantially  describe  the  work  to  be  done  and 
such  other  particulars  as  the  common  council  may  order,  and  shall 
designate  the  time  and  place  when  and  where  sealed  proposals  shall 
be  received  therefor;  the  said  proposals  shall  be  opened  and  con- 
sidered at  the  first  meeting  thereafter  of  either  body  of  the  common- 
council,  and  upon  any  bid  aforesaid  being  accepted,  a  contract  in' 
accordance  therewith  shall  be  drafted  and  submitted  to  said  council 
for  its  approval ;  and  upon  the  same  being  approved  and  signed  by 
the  presiding  officer  of  each  body  of  the  said  council,  it  shall  be  exe- 
cuted on  the  part  of  the  city  by  the  mayor  and  city  clerk  with  the 
corporate  seal  of  the  city  attached,  and  countersigned  by  the  comp- 
troller, and  filed  with  the  bond  required  by  this  charter  in  the  office 
of  such  comptroller." 


MODE   OF   CONTRACTING  173 

This  section  must  be  considered  and  construed  in  connection  with 
all  other  provisions  in  the  charter  bearing  upon  the  powers  of  the 
common  council  and  city  officers.  Section  1,  c.  15,  treated  by  itself, 
does  not  designate  how  the  several  steps  leading  up  to  the  consum- 
mation of  a  contract  shall  be  taken — whether  by  motion  or  by  reso- 
lution. We  must  look  elsewhere,  therefore,  than  in  this  section,  for 
the  specific  expressions  of  authority  and  method  of  procedure.  We 
look  in  vain  for  any  express  authority  to  proceed  by  motion  with 
reference  to  the  lighting  of  the  city.  On  the  other  hand,  as  above 
pointed  out  in  respect  to  such  subject,  the  council  shall  proceed  by 
resolution. 

Another  inference  shows  that  there  was  an  intention  to  control 
the  procedure  with  reference  to  lighting  the  city,  by  resolution :  Sec- 
tion 71,  tit.  3,  c.  6,  provides  that  twice  a  year  the  board  of  public 
works  shall  make  report  to  the  common  council  of  the  condition  of 
the  gas  and  electric  lamps  for  which  the  city  is  paying,  and  that,  such 
report  being  received,  the  council  shall,  by  resolution  or  ordinance, 
direct  what  lights  shall  be  used  in  the  future.  This  section  is  drawn 
in  harmony  with  the  provisions  conferring  express  authority  upon 
the  council  in  chapter  4.  If  the  framers  of  the  charter,  and  the  people 
in  adopting  it,  considered  the  matter  of  the  continuance  of  various 
lights  in  the  city  of  enough  importance  to  be  submitted  by  the  board 
of  public  works  to  the  common  council,  and  require  it  to  proceed  in 
a  deliberate  manner,  by  resolution,  for  so  much  greater  reason  should 
the  council  be  required  to  so  proceed  with  reference  to  contracts  of 
greater  importance.  Therefore,  in  omitting  to  specify  in  section  1,  c. 
15,  that  the  council  should  proceed  by  resolution,  it  was  not  in- 
tended to  confer  upon  it  authority  to  proceed  by  motion.  On  the 
contrary,  it  is  evident  that  such  omission  to  specify  the  line  of  pro- 
cedure was  a  mere  accident,  and  of  no  importance.  However,  did 
the  city  substantially  comply  with  the  provisions  of  section  1,  con- 
ceding that  the  council  should  have  proceeded  by  resolution? 

In  the  present  case  a  resolution  was  passed,  requesting  the  board 
of  i)ublic  works  to  furnish  a  set  of  specifications  upon  which  adver- 
tisements might  be  had,  inviting  bids  for  lighting  a  certain  portion 
of  the  city.  In  response  thereto  such  board  prepared  plans  and  spec- 
ifications for  the  furnishing  of  2,300  incandescent  gasoline  lamps  to 
be  maintained  for  the  year  1903,  and  the  common  council  approved 
of  the  specifications  so  reported,  and  also  directed  the  city  clerk  to 
give  notice  in  the  official  i)aper  of  the  city  of  the  intention  to  receive 
bids  and  award  a  contract  for  the  furnishing  and  maintenance  of  such 
lights  as  provided  by  the  plans  and  specifications.  Such  notice  was 
given,  and  in  response  thereto  three  bids  were  received  and  reported 
to  the  council,  and  at  an  adjourned  meeting  the  council  passed  a  reso- 
lution rejecting  the  bid  of  the  Western  Street  Lighting  Company,  which 
was  the  lowest  bidder;  and,  upon  motion,  the  bid  of  respondent  com- 
pany, the  next  lowest,  was  accei)tcd,  and  the  contract  awarded  to  it. 


174  CONTRACTS 

The  resolution  rejecting  the  bid  of  the  Western  Street  Lighting  Com- 
pany was  not  approved  by  the  mayor,  but  at  the  expiration  of  five 
days  became  a  law;  and,  in  pursuance  of  the  motion  accepting  the 
bid  and  awarding  the  contract  to  respondent  company,  the  form  of 
contract  was  subsequently  approved  by  the  board  of  aldermen  and 
assembly,  and  duly  signed  by  the  presiding  officers  of  each  body,  but 
at  the  commencement  of  this  action  had  not  yet  been  signed  by  the 
mayor  and  respondent  company. 

Attention  is  called  to  the  fact  that  the  common  council  approved 
the  semi-annual  report  of  the  board  of  public  works,  and  by  formal 
resolution  directed  the  maintenance  of  the  lamps  therein  specified, 
pursuant  to  section  71,  tit.  3,  c.  6;  and  it  is  submitted  that  the  sev- 
eral resolutions  referred  to  are  the  only  necessary  prerequisites,  basic 
in  character,  defining  the  necessity  for  the  lights  and  the  determination 
of  the  city  to  maintain  them,  and  in  that  respect  was  a  compliance 
with  the  requirement  calling  for  the  lighting  of  the  city  by  resolution. 
The  argument  fails  for  the  reason  that  the  several  resolutions  refer- 
red to  deal  only  with  those  preliminary  steps  which  lead  up  to  the 
final  and  essential  thing,  the  awarding  of  the  contract.  It  would  be 
remarkable  if,  in  the  scheme  of  government  so  elaborately  planned 
to  protect  the  public  interest,  the  people  should  provide  that  in  the 
preliminary  matters  of  calling  for  specifications  and  bids  the  common 
council  should  be  required  to  proceed  by  resolution,  but,  when  the 
essential  and  critical  act  is  reached — that  which  goes  to  the  very  es- 
sense  of  the  subject — the  safeguards  should  be  removed,  and  the  coun- 
cil be  permitted  to  proceed  and  award  the  contract  upon  motion.  Those 
duties  prescribed  by  section  1  regarding  the  drafting  of  the  contract, 
and  its  submission  to  the  council  for  approval,  and  the  signing  thereof 
by  the  presiding  officers  of  the  assembly  and  the  board  of  aldermen, 
city  clerk  and  mayor,  may  be  considered  mere  ministerial  acts.  Whil6 
the  section  is  not  artistically  drawn,  it  is  evident  that,  after  the  bid 
is  accepted  and  the  contract  authorized  by  the  co-operation  of  the 
common  council  and  mayor,  all  that  remains  to  be  done  thereafter 
is  formal  in  character,  and  for  the  purpose  of  insuring  the  execution 
of  the  contract  in  accordance  with  the  terms  of  the  award. 

Assuming  the  contract  was  signed  by  the  mayor,  and  that  the  par- 
ties have  been  operating  under  it  for  the  current  year,  it  does  not 
follow  that  the  act  of  attaching  his  signature  had  the  efifect  of  making 
it  a  legal  instrument.  The  position  of  the  mayor,  under  the  provi- 
sions of  chapter  4,  as  a  necessary  element  in  the  consideration  of  those 
enactments  which  pertain  to  the  government  of  the  city,  is  quite 
different  from  his  position  as  a  mere  ministerial  officer  in  attaching 
his  signature  to  the  contract.  If  the  contract  in  question  was  illegal 
for  the  reason  stated,  the  mayor  could  not  make  it  legal  by  his  signa- 
ture. If  it  did  not  meet  with  his  approval,  it  must  have  been  again 
submitted  to  the  consideration  of  the  common  council,  and  passed  by 
a  four-fifths  vote,  and  the  time  had  passed  for  such  resubmission  and 


LETTING  OF  CONTRACTS  175 

consideration.  His  refusal  to  attach  his  signature  would  not  have 
the  effect  of  resubmitting  it  to  the  council,  to  the  same  intents  and 
purposes  as  though  returned  with  his  veto  during  the  course  of  the 
proceedings. 

The  conclusion  follows  that  the  action  of  the  common  council  in 
awarding  the  contract  to  respondent  company  was  without  authority 
and  void,  and  for  this  reason  the  judgment  of  the  court  below  must 
be  reversed.     So  ordered. 


III.  Letting  of  Contracts  * 


CHIPPEWA  BRIDGE  CO  v.  CITY  OF  DURAND. 

(Supreme  Court  of  Wisconsin,  1904.    122  Wis.  85,  99  N.  W.  603,  106  Am.  St. 

Rep.  931.) 

Action  by  the  Chippewa  Bridge  Company  against  the  city  of  Dur- 
and  and  others.     Judgment  for  defendants,  and  plaintiff  appeals. 

Taxpayer's  action  to  prevent  an  alleged  unlawful  use  of  public 
funds.  Plaintiff  is  a  private  corporation  organized  under  the  laws 
of  Wisconsin.  Defendant  city  of  Durand  is  a  municipal  corporation 
organized  and  existing  under  chapter  252,  p.  1039,  Laws  of  such 
state  for  1887  and  the  acts  amendatory  thereof.  The  city,  at  the 
times  herein  mentioned,  possessed  authority  under  chapter  430,  p. 
611,  Laws  of  Wisconsin  for  1901,  to  construct  a  bridge  across  the 
Chippewa  river,  and  prior  to  the  proceedings  hereafter  mentioned 
to  that  end  the  city  duly  procured  and  had  in  its  treasury  for  that 
purpose  $25,000.  The  city  purchased  material  for  a  draw  si)an  for 
such  bridge  from  the  American  Bridge  Company,  and  let  a  contract 
for  the  superstructure  of  the  bridge  to  such  company,  and  also  a 
contract  for  the  substructure  of  the  bridge  to  said  Business  Men's 
League. 

The  common  council  approved  of  a  contract  with  the  American 
Bridge  Company  for  the  superstructure  December  30,  1901,  and  or- 
dered the  mayor  to  execute  such  contract.  ^I'liat  was  accordingly 
done,  January  3,  1902.  January  13,  1902,  a  bid  of  the  Business 
Men's  League  aforesaid,  for  the  substructure,  was  accepted,  and  a 
contract  executed  accordingly.  P)Onds  were  given  to  secure  the 
performance  of  both  contracts  in  accordance  with  tbc  charter,  except 
that  bonds  did  not  in  any  case  accompany  the  bids,  nor  was  any  re- 
quirement in  that  regard  made  by  the  coinicil  as  the  charter  pro- 
vides. The  mayor  sent  a  communication  to  five  bridge  companies, 
soliciting  bids  for  the  superstructure,  which  included  the  use  of  a 

«  For  (liscu.ssion  of  i)rlnclplpH,  see  Cooloy,   Miin.  Cnrp.  §  71. 


175  CONTRACTS 

draw  span  to  be  furnished  and  delivered  by  the  city,  the  same  to 
be  put  in  place  and  adapted  to  being  a  part  of  the  bridge  by  the 

contractor. 

The  communication  contained  a  diagram  showing  in  a  general 
way  the  characteristics  of  the  span  to  be  used,  and  information  to 
the'  following  effect :  Four  of  such  spans  will  be  required.  Each 
bidder  will  be  permitted  to  arrange  details  to  suit  its  own  manu- 
facturing facilities,  subject  to  the  general  specifications  and  sub- 
ject to  the  approval  of  the  city  engineer.  The  bid  in  each  case  should 
include  the  expense  of  putting  in  place  the  draw  span  furnished  by 
the  city.  Bids  for  the  complete  work  are  to  be  preferred.  The 
steelwork  must  be  painted  as  indicated.  The  structure  will  not  in- 
clude bed  joists,  planking,  guard  rails  or  substructure.  All  bids 
should  be  sent  to  the  writer  by  December  16,  1901.  The  right  to 
reject  any  and  all  bids  is  reserved.  The  contract  will  be  awarded  to 
the  lowest  responsible  bidder.  The  terms  of  payment  will.be  cash 
upon  acceptance  of  the  work. 

There  was  no  other  solicitation  for  bids  for  the  superstructure  ex- 
cept some  orally  made  by  the  mayor  and  the  city  engineer  to  two 
of  the  bridge  companies,  one  of  whom  obtained  the  contract.  Prior 
to  December  17,  1901,  at  which  time  there  was  a  meeting  of  the  com- 
mon council,  bids  had  been  received  in  response  to  the  communica- 
tion aforesaid,  as  follows :  American  Bridge  Company,  $16,625 ; 
King  Bridge  Company,  $14,000  and  20  per  cent,  on  cost  of  erecting 
draw;  Waukesha  Bridge  Company,  $15,630.  No  action  was  taken 
thereon  December  17th.  Thereafter  the  American  Bridge  Com- 
pany, by  oral  communication  and  by  negotiation,  reduced  its  bid 
to  $15,000,  and  concessions  were  made  to  it.  No  action  was  taken 
by  the  common  council  as  to  auditing  any  of  the  claims  for  payment 
under  the  contract.  The  contract  actually  awarded  to  the  American 
Bridge  Company  varied  in  several  material  particulars  from  the 
terms  stated  in  the  mayor's  communication  aforesaid.  There  was 
considerable  evidence  tending  to  show  that  the  officers  of  the  city 
were  active,  after  this  action  was  commenced,  in  placing  the  money 
designed  for  payment  for  the  bridge,  beyond  the  reach  of  any  judg- 
ment or  order  which  the  court  might  make  in  respect  thereto  inter- 
fering with  the  purpose  of  such  officers. 

Marshall,  J.e  *  *  *  Appellant's  case  depends  primarily 
upon  whether  the  word  "work"  in  section  13,  subchapter  4,  of  the 
respondent  city's  charter  (chapter  252,  p.  1057,  Laws  1887),  is  limit- 
ed to  the  mere  exercise  of  human  energy,  with  or  without  the  use 
of  appliances  to  render  the  same  efficient,  instead  of  extending  to 
the  products  of  such  energy,  such  as  a  bridge,  a  building,"  or  any  one 
of  a  great  many  things  that  might  be  mentioned,  not  mere  matters 
of   merchandise.     The   lexical    meaning   of   the    word   covers   both, 

s  The  statement  of  facts  is  rewritten  and  part  of  the  opinion  is  omitted. 


LETTING   OF   CONTRACTS  177 

though  the  former  is  the  more  common  meaning.  Mere  physical 
or  mental  exertion  to  accomplish  an  end  is  work;  so  is  that  upon 
which  one  labors,  and  also  that  produced  thereby.  Webster's  Diet. 
That  the  word  includes  the  latter  meaning  in  the  law  in  question 
hardly  admits  of  reasonable  controversy.  The  language  of  such 
law  is  as  follows : 

"All  contracts  for  work  ordered  by  the  common  council  of  said 
city,  the  expense  whereof  shall  exceed  the  sum  of  fifty  dollars,  shall 
be  let  to  the  lowest  reasonable  and  responsible  bidder  who  shall 
have  complied  with  the  requirements  hereinafter  set  forth." 

One  of  the  most  familiar  rules  for  judicial  construction  would  re- 
quire the  word  "work"  as  thus  used  to  include  the  products  of 
work  other  than  mere  merchandise,  if  there  were  any  ambiguity  in 
respect  thereto  calling  for  judicial  construction,  which  is  doubtful. 
Judicial  interpretation  or  construction  never  legitimately  begins  ex- 
cept at  the  point  where  certainty  so  far  ends  that  two  or  more  rea- 
sonable meanings  are  apparent.  "The  effect  and  consequences,  and 
the  reason  and  spirit"  of  an  enactment  are  to  be  looked  to  in  solving 
any  ambiguity  therein,  and  are  to  prevail  within  the  reasonable  scope 
of  the  language  used  if  the  legislative  purpose  in  that  regard  can  be 
fairly  said  to  be  therein  expressed.  Harrington  v.  Smith,  28  Wis. 
43 ;  Wisconsin  Industrial  School  for  Girls  v.  Clark  Co.,  103  Wis. 
651,  79  N.  W.  422.  The  reason  for  such  enactments  as  the  one  in 
question  is,  in  the  main,  to  preclude  public  officers  from  making  con- 
tracts in  such  a  way  as  to  enable  them  to  sacrifice  the  public  interests 
to  satisfy  favoritism,  mere  improvidence,  or  to  a  corrupt  desire  for 
private  gain.  There  is  no  better  safeguard  against  infidelity  of  of- 
ficials in  that  respect,  yet  discovered,  than  to  require  municipal  con- 
tracts to  be  pul)licly  let,  the  scope  of  the  service  to  be  performed 
and  the  terms  of  payment  being  so  definitely  mapped  out  in  advance 
as  to  enable  persons  experienced  in  respect  thereto  to  estimate  with 
reasonable  certainty  the  actual  cost  thereof,  and  to  require  the  award 
to  l)e  made  without  change  in  such  service  or  terms.  A  requirement 
of  that  kind  forms  part  of  the  governmental  system  of  nearly  every 
political  organization  from  the  nation  itself  down  to  the  minor  gov- 
ernmental agencies  in  towns. 

Obviously,  to  restrict  the  meaning  of  the  word  "work"  in  (he  law 
in  question  to  the  mere  expenditure  of  physical  or  mental  energy  to 
some  municijial  cnrl,  would  violate  the  manifest  policy  thereof.  It 
is  far  more  important  to  public  interests  to  recpiire  the  construction 
of  l)uildings,  bridges  and  other  structures  needed  by  municipalities 
to  be  contracted  U)r  according  to  the  merits  of  competitive  offers, 
than  to  require  mere  work  to  1)e  so  contracted  for.  The  term  in 
question,  in  such  statutes  as  wo  have  here,  is  connnonly  regarded  as 
referring  more  properly  to  the  fcjrmer  than  to  the  latter,  and  without 
room  for  reasonable  controversy.  Very  few  instances  can  be  found 
CooLEY  Cases  Mun.C. — 12 


1 78  CONTRACTS 

in  the  books  where  courts  have  been  called  upon  to  make  any  dec- 
laration in  the  matter.  In  Ricketson  v.  Milwaukee,  105  Wis.  591, 
81  N.  W.  864,  47  L.  R.  A.  685,  "work"  in  a  somewhat  similar  pro- 
vision to  the  one  under  consideration,  was,  without  discussion,  treat- 
ed as  including  the  construction  of  a  crematory.  True,  in  the  Mil- 
waukee city  charter  it  was  coupled  with  the  word  "improvements" 
at  one  point,  but  at  others  it  was  used  as  inclusive  thereof.  In  the 
directions  for  letting  the  contract  it  was  used  alone,  manifestly  as 
covering  buildings,  bridges  and  all  structures  required  by  the  munic- 
ipality. In  State  ex  rel.  Dunn  v.  Barlow,  48  Mo.  17,  Mazet  v.  Pitts- 
burgh, 137  Pa.  548,  20  Atl.  693,  American  Pavement  Co.  v.  Wagner, 
139  Pa.  623,  21  Atl.  160,  and  many  other  cases  that  might  be  referred 
to,  such  word  in  similar  laws  is  spoken  of  as  synonymous  with 
works,  structures  of  some  kind.  In  the  charter  of  respondent  it  ob- 
viously includes  that  meaning. 

In  addition  to  what  has  been  stated  as  to  the  manner  in  which 
public  work  is  required  to  be  contracted  for  under  the  charter  of 
respondent  city,  there  is  the  following  in  the  section  before  referred 
to :  "All  bids  and  proposals  shall  be  sealed  and  directed  to  the 
common  council,  and  shall  be  accompanied  with  a  bond  to  the  city 
in  a  penal  sum  equal  to  the  amount  of  the  bid,  which  bond  shall 
be  signed  by  the  bidder  and  by  a  responsible  surety,  who  shall  jus- 
tify that  he  is  worth  the  sum  mentioned  in  such  bond  over  and  above 
all  debts,  liabilities  and  exemptions ;  such  bond  shall  be  conditioned 
that  such  bidder  will  execute  a  contract  at  such  time  as  the  common 
council  shall  require,  with  satisfactory  sureties,  to  perform  the  work 
specified." 

Power  to  make  the  contracts  in  question  at  all  was  dependent  up- 
on a  substantial  compliance  with  all  the  quoted  provisions.  Rick- 
etson V.  Milwaukee,  supra.  If  they  were  made  in  any  other  way, 
they  constituted  no  warrant  for  the  disbursement  of  public  money 
for  the  structure  obtained  thereby,  nor  did  the  furnishing  thereof, 
whether  in  good  faith  or  bad  faith,  or  whether  the  city  in  fact  ob- 
tained a  good  bargain  or  not,  of  itself  constitute  a  defense  to  this 
taxpayer's  action  to  prevent  payment  of  public  money  to  the  re- 
spondent bridge  company  and  Business  Men's  League ;  nor  can  such 
furnishing  prevent  the  rendition  of  a  judgment  against  them  and 
the  oflficers  who  participated  in  transferring  possession  of  the  money 
illegally  from  the  city  treasury  to  them  for  a  restoration  thereof  to 
such  treasury.  Frederick  v.  Douglas  Co.,  96  Wis.  411,  71  N.  W. 
798;  Ricketson  v.  Milwaukee,  supra;  Mueller  v.  Eau  Claire  Co., 
108  Wis.  304,  84  N.  W.  430;  City  Improvement  Co.  v.  Broderick, 
125  Cal.  139,  57  Pac.  776;  McCloud  v.  Columbus,  54  Ohio  St.  439, 
44  N.  E.  95 ;  Addis  v.  Pittsburgh,  85  Pa.  379 ;  Zottman  v.  San  Fran- 
cisco, 20  Cal.  96,  81  Am.  Dec.  96;  McDermott  v.  Jersey  City,  56 
N.  J.  Law,  273,  28  Atl.  424;  Brady  v.  New  York,  20  N.  Y.  312; 
Board  of  Supervisors  v.  Ellis,  59  N.  Y.  620;  McDonald  v.  Mavor. 


LETTING    OF   CONTRACTS  179 

68  N.  Y.  23,  23  Am.  Rep.  144 ;  Dickinson  v.  Poughkeepsie,  75  N.  Y. 
65 ;  East  River  G.  L.  Co.  v.  Donnelly,  93  N.  Y.  557 ;  Lvddy  v.  Long 
Island,  104  X.  Y.  218,  10  N.  E.  155;  People  ex  rel.  Coughlin  v.  Glea^- 
son,  121  X.  Y.  631,  25  N.  E.  4;  Wickwire  v.  Elkhart,  144  Ind.  305, 
43  N.  E.  216;  Platter  v.  Board,  etc.,  103  Ind.  360,  2  N.  E.  544. 

The  rule  of  the  X^ew  York  cases  above  cited  was  approved  in 
Wells  V.  Burnham,  20  Wis.  112.  True,  there  is  a  conflict  of  author- 
ities as  to  the  responsibility  of  a  municipality  to  pay  for  property 
obtained  through  an  invalid  contract  and  of  the  recipients  of  money 
thereon  to  restore  the  same,  some  holding  that  a  contract,  though 
not  in  all  essentials  made  according  to  law  if  within  the  power  of 
the  municipality,  and  fairly  made,  except  for  the  departure  from  es- 
tablished procedure,  cannot  be  impeached  after  the  performance 
thereof  and  acceptance  of  the  work,  and  some  holding,  in  the  cir- 
cumstances stated,  that  though  no  recovery  can  be  had  upon  the 
contract,  there  may  be  quantum  meruit.  However,  the  general 
rule  is  that  a  municipality  is  without  authority  to  make  a  contract 
having  any  vitality  whatever  otherwise  than  for  the  objects  and  in 
the  manner  prescribed  by  law,  and  that  one  in  form  entered  into  in 
any  other  manner  than  substantially  that  provided  by  law,  where  the 
provisions  in  that  regard  are  coupled  with  a  prohibition  to  other- 
wise contract,  imposes  no  liability  on  the  municipality  even  though 
it  is  performed  by  the  opposite  party.  In  People  v.  Gleason,  supva, 
it  was  held,  that  a  contract  thus  prohibited  is  fundamentally  illegal ; 
that  the  common  council  of  a  city  has  no  jurisdiction  to  audit  and 
allow  a  claim  thereunder  or  to  recognize  it  as  having  any  vitality 
whatever.     *     *     * 

Before  testing  the  finding  of  the  court  by  the  evidence,  as  to 
whether  the  charter  requisites  to  the  validity  of  the  contract  were 
complied  with,  we  will  endeavor  to  state  clearly  what  those  requi- 
sites were.  First  in  order  is  the  one  requiring  the  work  to  be  let  to 
the  lowest  reasonable  and  responsible  bidder.  The  charter  contains 
no  express  direction  as  to  the  manner  of  calling  for  bids  or  giving 
the  necessary  information  to  enable  persons  desiring  to  enter  the 
competition  to  do  so  intelligently,  each  having  in  mind  the  same 
character  of  work  anfl  terms.  Many  charters  contain  such  express 
flircction.  In  such  circumstances  it  has  been  uniformly  held  that 
failure  to  call  for  bids«  in  the  prescribed  way  or  to  provide  plans 
and  specifications  for  the  work  within  the  convenient  reach  of  bid- 
ders, is  fatal  to  the  proceeding.  Ricketson  v.  Milwaukee,  supra. 
State  ex  rel.  Dunn  v.  I'.arlow,  supra.  When  the  manner  prescribed 
for  letting  public  contracts  includes  the  element  of  C(jnipetition  be- 
tween rival  bidders  and  cannot  be  executed  in  spirit  without  reason- 
ably definite  i)lans  an<l  specifications  for  the  proposed  work  being 
provifled  for  the  use  of  biflders  and  a  notice  being  given  of  the  facts 
in  some  way  reasonably  calculate<l  to  attract  the  attention  of  all 
pf^rsons  liable  to  desire  to  enter  the  competition  if  given  an  op])or- 


180  CONTRACTS 

tunity  to  do  so,  then  such  requirements  should  be  regarded  as  a 
part  of  the  law  by  necessary  implication.  In  Mazet  v.  Pittsburgh, 
supra,  it  was  held  that  a  requirement  for  public  work  to  be  let  to 
the  "lowest  bidder  necessarily  implies  a  common  standard  by  which 
to  measure  the  respective  bids,  and  that  common  standard  must 
necessarily  be  previously  prepared,  specifications  of  the  work  to  be 
done  and  materials  to  be  furnished,  etc.,  specifications  freely  acces- 
sible to  all  who  may  desire  to  compete  for  the  contract  and  upon 
which  alone  their  respective  bids  must  be  based." 

We  indorse  that.  This  court  in  effect  so  held  in  Kneeland  v. 
Milwaukee,  18  Wis.  411,  and  Kneeland  v.  Furlong,  20  Wis.  441. 
In  the  latter  case  the  placing  of  proper  plans  and  specifications  with- 
in the  convenient  reach  of  bidders  so  as  to  enable  them  to  act  in- 
telligently in  respect  to  the  proposed  work,  each  making  an  offer 
to  produce  the  particular  desired  result  was  held  to  be  a  matter 
of  the  highest  importance.  "The  want  of  proper  and  certain  in- 
formation," said  the  court,  "must  always  tend  to  discourage  bidders 
and  prevent  fair  competition."  Otherwise,  a  law  merely  requiring 
public  work  to  be  let  to  the  lowest  reasonable  and  responsible  bid- 
der would  be  inefifective.  Such  a  law  clearly,  by  implication,  con- 
tains substantially  what  was  expressed  in  the  charter,  compliance 
with  which  was  deemed  to  be  vital  to  the  contract  in  Ricketson  v. 
Milwaukee,  supra.  As  there  held,  such  a  provision  contemplates 
that  "the  bidders  shall  start  on  a  common  ground  and  bid  for  the 
production  or  accomplishment  of  the  same  identical  result."  In 
harmony  with  that,  we  hold  that  the  charter  in  question  required, 
as  an  essential  to  the  validity  of  the  contracts  for  the  bridge,  the 
preparation  of  proper  plans  and  specifications  for  those  parts  of 
the  bridge  proposed  to  be  let  separately,  the  placing  thereof  within 
convenient  reach  of  all  desiring  to  consult  the  same  for  the  purpose 
of  bidding  for  the  work,  and  the  giving  of  public  notice  in  some 
way  reasonably  appropriate  to  reach  all  persons  likely  to  desire  to 
participate  in  the  competition. 

A  second  essential  contained  in  the  charter  is  that  the  plans  and 
specifications  and  terms,  submitted  as  a  basis  for  the  bids,  shall  not 
be  changed  except  in  such  manner  as  to  affect  all  bidders  and  per- 
sons desiring  to  bid  alike;  that  in  case  of  a  substantial  change,  ei- 
ther in  the  character  of  the  structure  or  the  terms  of  the  proposed 
contract  after  the  first  competition  shall  have  been  completed,  there 
shall  be  a  second  opportunity  given  to  bid  upon  the  new  basis. 
Wells  v.  Burnham,  supra ;  McDermott  v.  Jersey  City,  56  N.  J.  Law, 
273,  28  Atl.  424.  To  permit  one  person  to  change  his  offer  in  con- 
sideration of  a  variation  in  the  plans  and  specifications  or  proposed 
terms,  and  to  award  to  him  the  contract  as  a  result  thereof,  is  the 
plainest  kind  of  a  violation  of  such  a  law  as  the  one  in  question. 
An  award  made  to  a  particular  bidder  through  negotiations  with 
him,  the  work  to  be  done  or  the  terms  of  the  contract  being  privately 


LETTING   OF   CONTRACTS  181 

varied  upon  the  one  side  to  secure  a  reduction  in  the  offer  to  do  the 
work  upon  the  other,  is  not  a  letting  to  the  lowest  bidder  upon  an 
open  competition.  On  the  contrary,  it  is  an  award  of  work  privately 
made  upon  special  terms  to  produce  something  not  submitted  to 
public  competition.  Shaw  v.  Trenton,  49  N.  J.  Law,  339,  12  Atl. 
902;  Tiedeman  on  ]\Iun.  Corp.  173. 

A  provision  for  public  contracts  to  be  let  to  the  lowest  reason- 
able and  responsible  bidder,  executed  reserving  power  to  reject  any 
and  all  bids,  requires  the  governing  board  to  take  up  the  bids  for 
the  work  and  consider  them  judicially.  It  does  not  permit  arbi- 
trary rejection  of  bids,  nor  arbitrary  preference  of  one  bid  over  an- 
other which  is  lower.  Having  determined,  in  the  manner  indicated, 
which  of  the  several  bids  is  the  lowest  and  most  reasonable  of  those 
made  by  responsible  parties  to  do  the  thing  proposed  in  the  man- 
ner and  upon  the  terms  specified,  and  that  there  is  no  good  reason 
for  rejecting  all  bids  and  throwing  the  matter  open  to  a  second  com- 
petition, the  governing  body  should  award  the  contract.  Beach  on 
Public  Corp'ns,  698.  The  law  permits  no  private  negotiations  with 
an  individual  bidder,  no  change  of  plans  and  specifications  submit- 
ted for  the  competition,  no  variance  for  the  purpose  of  obtaining  a 
change  in  the  bid  of  one  or  more  bidders.  The  whole  matter  is  to 
be  conducted  with  as  much  fairness,  certainty,  publicity,  and  absolute 
impartiality,  as  any  proceeding  requiring  the  exercise  of  quasi  ju- 
dicial authority.  Municipal  officers,  in  the  execution  of  such  a  law, 
must  necessarily  exercise  the  judicial  function  to  a  certain  extent, 
acting  between  the  corporation  and  the  bidders,  and  between  bid- 
ders. 

A  third  essential  of  the  charter  is  that  all  bids  shall  be  sent  to  the 
city  council  under  seal.  That  implies  that  the  bids  are  to  be  opened 
in  the  presence  of  the  council,  and  all  so  treated  at  the  same  time  and 
when  they  are  taken  up  for  consideration,  thus  in  a  measure  pre- 
cluding publicity  as  to  the  contents  of  the  respective  bids  and  op- 
portunity for  collusion  between  bidders,  and  negotiations  between 
members  of  the  council  and  bidders. 

A  fourth  essential  of  the  charter  is  that  each  bid  shall  be  accom- 
panied with  a  bond  as  before  indicated. 

In  the  light  of  what  has  been  said  and  the  evidence  found  in  the 
record,  wc  are  at  a  loss  to  understand  upon  what  theory  it  could 
have  been  held  that  the  charter  of  the  respondent  city  was  substan- 
tially complied  with  in  the  making  of  the  contracts  in  question.  Aj)- 
I)cllant's  counsel  insist,  upon  good  grounds,  that  the  finding  is  not 
supported  by  the  law  or  the  evidence.  It  seems  probable  that  the 
true  basis  thereof  is  disclosed  in  the  idea  expressed  in  connection 
therewith,  that  in  awarding  the  contract  (he  conncil  proceeded  in  the 
manner  best  calculated  to  secure  competition  in  bidding,  and  in  the 
customary  manner  of  letting  contracts  for  such  work  to  the  lowest 
reasonable  and  responsible  bidder.     That  is,  as  we  take  it,  that  or- 


182  CONTRACTS 

(liiiarily  in  letting  public  work  to  the  lowest  reasonable  and  respon- 
sible biilder,  the  right  to  reject  any  and  all  bids  being  reserved,  after 
some  basis  of  actual  cost  has  been  obtained  by  the  submission  of 
numerous  bids,  private  negotiations  are  resorted  to  for  the  purpose 
of  making  the  best  possible  bargain,  and  that  in  such  negotiations 
it  is  customary  to  give  and  take,  each  side  striving  by  minor  con- 
cessions to  obtain  major  advantages.  That  may  be  true  as  regards 
private  contracts,  though  it  is  doubtful;  but  manifestly,  no  such 
proceedings  can  be  justified  as  regards  public  contracts  where  the 
law  specifically  directs  the  steps  to  be  taken. 

The  circuit  court  must  have  used  the  term  "substantial  com- 
pliance" with  reference  to  the  actual  results  obtained  instead  of  the 
essential  steps  required  by  the  charter  in  the  making  of  such  con- 
tracts, the  idea  being  that  the  purpose  of  such  steps  is  to  obtain  the 
best  results  practicable  for  the  corporation,  and  that,  if  such  results 
were  in  fact  obtained,  then  the  charter  was  substantially  complied 
with.  If  so,  a  mistake  of  law  was  very  clearly  committed.  It  may 
be  that,  in  the  particular  case,  the  methods  adopted  by  the  city  of- 
ficers to  procure  the  bridge  were  advantageous  to  the  public;  but 
that  does  not  help  the  matter.  The  charter  having  prescribed  how 
such  contracts  must  be  made,  having  mapped  out,  expressly  or  by 
implication,  a  particular  plan  to  be  followed  in  order  to  prevent  dick- 
ering, which,  if  allowed  to  be  resorted  to  in  such  matters,  is  liable 
to  result  in  favoritism,  extravagance  or  corruption,  the  municipal 
officers  were  under  an  absolute  disability  to  proceed  in  any  other 
way. 

So,  while  it  may  be  true  that  in  the  particular  case  before  us  the 
best  results  obtainable  were  secured,  and  if  that  were  to  be  taken 
as  warranting  the  finding  of  substantial  compliance,  it  could  be 
sustained,  manifestly,  it  is  not  the  test,  nor  a  circumstance  that 
counts  in  a  contest  of  this  kind.  There  is  no  such  thing  known  to 
the  law  as  substantial  compliance  with  the  prescribed  method  for 
making  public  contracts,  other  than  performance,  in  substance,  of 
every  condition  precedent  to  such  making,  regardless  of  whether  the 
results  finally  obtained  could  have  been  reached  in  the  particular  in- 
stance in  a  more  economical  manner  or  not. 

The  evidence  is  undisputed  that  the  draw  span  of  the  bridge,  a 
very  material  part,  was  obtained  by  private  contract  in  violation  of 
the  express  prohibition  in  the  charter ;  that  the  substructure  was  ob- 
tained in  substantially  the  same  way ;  that  the  only  invitation  for  bids 
on  the  superstructure  was  by  letters  addressed  by  the  mayor  to 
several  bridge  companies ;  that  there  was  no  general  invitation  or 
opportunity  given  to  men  engaged  in  the  business  of  constructing 
bridges  to  bid  on  the  work ;  that  the  letter  sent  to  the  few  favored 
bridge  companies  did  not  confine  the  bidders  to  a  competition  to 
produce  the  same  particular  result ;  that  each  was  permitted  to  vary 
the  details  of  the  work  to  suit  his  own  notions  and  convenience ;  that 


LETTING   OF   CONTKACTS  183 

the  charter  requirement  as  to  all  bids  being  directed  to  the  common 
council  under  seal  and  accompanied  by  a  bond  was  entirely  omitted 
from  the  invitation,  and  from  the  oiifers  made  by  bidders ;  that  there 
was  no  adjudication  by  the  council  upon  bids  submitted,  as  the  char- 
ter requires ;  that  the  contract  made  did  not  accord  with  any  bid 
submitted,  formally,  or  with  the  invitation  for  bids ;  and  that  it 
was  made  as  the  result  of  negotiations  between  the  city  ofificers  and 
the  bridge  company,  the  price  of  the  work  and  the  terms  of  pay- 
ment being  materially  changed  from  what  other  bidders  had  the  op- 
portunity of  considering.  A  more  flagrant  disregard  of  the  provi- 
sions of  a  city  charter  in  respect  to  such  matters  it  would  be  hard 
to  find  in  any  of  the  large  number  of  cases  reported  in  the  books 
touching  such  question.  That  the  contracts  were  utterly  void  and 
furnished  no  justification  for  turning  over  public  money  to  the  re- 
spondent bridge  company  and  the  respondent  members  of  the  Busi- 
ness Men's  League,  is  too  manifest  to  require  further  discussion. 
*     *     *     Reversed. 


DIAMOND  V.  CITY  OF  MANKATO  et  al. 

(Supreme  Court  of  Minnesota,  1903.     89  Minn.  48,  93  N.  W.  911,  61  Tj.  U.  A. 

448.) 

Action  by  John  Diamond  against  the  city  of  Mankato  and  others. 
Findings  for  plaintiff.  From  an  order  denying  a  new  trial,  defend- 
ants appeal. 

Start,  C.  J.*'  The  plaintiff  is  a  taxpayer  of  the  city  of  Mankato, 
and  the  owner  of  land  fronting  on  that  portion  of  Broad  street  lying 
between  Lincoln  and  Vine  streets,  in  the  city,  which  the  proper  mu- 
nicipal officers  determined  to  pave  with  asphalt.  He  brought  this  ac- 
tion to  restrain  such  officials  from  entering  into  any  contract  on  be- 
half of  the  city  for  the  making  of  such  improvement.     *     *     * 

3.  The  trial  court  also  found :  "That  there  is  asphaltum  other  than 
Pitch  Lake  and  Bermudez  asphaltum  as  available,  and  e(|ually  as 
good  for  paving  jjurposes,  as  Pitch  Lake  and  Bermudez  asphaltum. 
and  that  there  are  persons,  firms,  or  corporations  seeking  contracts 
for  paving  streets  in  Minnesota  and  elsewhere  who  use  in  such 
work  asphaltum  other  than  riich  J^ake  or  Bermudez  asphaltum, 
and  who  cannot  procure  Pitcli  Lake  or  Bermudez  asphaltum.  That 
by  limiting  the  asphaltum  to  be  used  in  said  improvement  to  Pitch 
Lake  and  Bermudez  asphaltum,  and  by  other  restrictions  and  pro- 
visions in  the  specifications  theref(jr,  and  by  the  changes  and  al- 
terations made  in  said  specifications  by  the  officers  of  defendant 
city,  as  herein  found,  fair  competition  in  bidding  ujion  the  contract 
for  said  improvement  was  prevented  and  excluded,  and  firms  who 
wished    to,    and    would,    have    filed    bids    therefor,    were    prohibiied 

«  I'nrt  i)f  tlif  o()itiiiui  is  ouiitfcrl. 


184  CONTRACTS 

from  so  doing."  And,  further,  that  the  contract  was  null  and  void 
as  against  the  city.  If  this  finding  and  conclusion  are  supported 
by  the  evidence,  it  necessarily  leads  to  an  affirmance,  notwithstanding 
the  trial  court's  finding  on  the  question  of  the  necessity  for  initiating 
the  improvement  is  not  justified  by  the  evidence.  The  question  is. 
then,  whether  the  finding  of  the  facts  upon  which  the  conclusion  is 
based  is  manifestly  and  palpably  against  the  weight  of  the  evidence. 

The  law  is  well  settled  that  where,  as  in  this  case,  municipal  authori- 
ties can  only  let  a  contract  for  public  work  to  the  lowest  responsible 
bidder,  the  proposals  and  specifications  therefor  must  be  so  framed  as 
to  permit  free  and  full  competition.  Nor  can  they  enter  into  a  con- 
tract with  the  best  bidder  containing  substantial  provisions  beneficial 
to  him,  not  included  in  or  contemplated  in  the  terms  and  specifications 
upon  which  bids  were  invited.  The  contract  must  be  the  contract 
offered  to  the  lowest  responsible  bidder  by  advertisement.  Nash  v. 
St.  Paul.  11  Minn.  174  (Gil.  110);  Schiffmann  v.  St.  Paul,  88  Minn. 
43,  92  N.  W.  503;  Wickware  v.  Elkhart,  144  Ind.  305,  43  N.  E.  216; 
Dickinson  v.  Poughkeepsie,  75  N.  Y.  65;  20  Amer.  &  Eng.  Ency. 
Law,  1165-1169.  This  rule  should  be  strictly  enforced  by  the  courts, 
for  if  the  lowest  bidder  may  by  an  arrangement  with  the  municipal 
authorities  have  incorporated  into  his  formal  contract  new  provisions 
beneficial  to  him,  or  have  onerous  ones  excluded  therefrom  which 
were  in  the  specifications  upon  which  bids  were  invited,  it  would  emas- 
culate the  whole  system  of  competitive  bidding.  It  would  also  lead 
to  abuses  by  opening  wide  the  door  of  opportunity  to  award  the  con- 
tract to  a  favorite  or  generous  contractor — generous  at  the  cost  of  the 
taxpayer.  To  secure  such  a  result  it  would  only  be  necessary  to  make 
the  terms  and  specifications  upon  which  bids  were  invited  burdensome 
for  bidders,  and  for  the  favored  one  to  make  his  bid  upon  the  secret 
understanding  that  such  terms  would  be  modified  in  making  the 
formal  contract. 

In  this  case  the  evidence  does  not  justify  the  conclusion  that  there 
was  any  such  secret  understanding,  or  that  the  municipal  authorities 
acted  corruptly  in  the  premises.  If,  however,  the  forbidden  act  was 
in  fact  done,  the  contract  is  void  without  reference  to  the  intent  with 
which  it  was  done,  for  the  purpose  of  the  rule  is  to  secure  fair  com- 
petition upon  equal  terms  to  all  bidders,  and  to  remove  all  temptation 
for  collusion,  and  opportunity  for  gain  at  the  expense  of  the  property 
owners  by  the  municipal  authorities. 

We  come  now  to  the  consideration  of  the  evidence  in  the  light  of 
this  rule.  The  street  was  to  be  paved  with  asphalt.  The  city  charter 
required  that  the  municipal  authorities  should  advertise  for  bids  for 
the  doing  of  the  work  on  the  basis  of  the  plans  and  specifications,  and 
award  the  contract  to  the  lowest  reliable  bidder.  This  action  was 
commenced  March  31,  1902.  A  temporary  injunction  to  restrain  the 
municipal  authorities  from  entering  into  the  contract  for  the  paving  of 
the  street  was  prayed  for  in  the  complaint.    The  municipal  authorities, 


LETTING    OF   CONTRACTS  185 

on  ]\Iarch  17,  1902,  invited  by  a  proper  advertisement  sealed  bids  for 
doing  the  work,  upon  the  basis  of  the  specification,  to  be  filed  on  or 
before  April  2d.  On  April  18th  the  temporary  injunction  was  issued, 
and  served  on  April  23d,  and  on  the  same  day  the  formal  contract  was 
entered  into.  The  specifications  for  the  improvement  limit  the  kind 
of  asphalt  to  be  used  to  Trinidad  "Pitch  Lake"  asphaltum  obtained 
from  the  "Pitch  Lake"  in  the  Island  of  Trinidad,  or  Bermudez  as- 
phaltum. The  evidence  does  not  justify  the  conclusion  that  there  was 
a  monopoly  of  either  Pitch  Lake  or  Bermudez  asphaltum.  But  the 
evidence,  although  conflicting,  tends  to  show  that  there  was  other 
Trinidad  asphaltum  just  as  good,  and  that  the  formula  prescribed  in 
the  specifications  for  the  making  of  the  pavement  was  applicable  only 
to  Trinidad  Pitch  Lake  asphaltum,  and  that  for  this  reason  contractors 
were  deterred  from  bidding  on  the  work.  The  specifications  con- 
tained a  provision  to  the  effect  that  the  city  should  not  be  liable  for 
any  delay  or  stoppage  of  the  work  by  reason  of  any  injunction  or 
legal  proceedings  whatever,  and  a  further  one  to  the  effect  that  a 
penalty  of  $20  per  day  would  be  exacted  for  every  day's  delay  in 
finishing  the  work  after  August  1,  1902.  The  contract  was  changed 
by  adding  the  words,  "providing  such  failure  or  delay  is  not  through 
unavoidable  causes." 

The  evidence  tends  to  show  that  at  least  one  party  was  deterred 
from  bidding  on  the  work  by  reason  of  these  provisions  in  the  speci- 
fications. In  view  of  the  pendency  of  the  action  and  the  opposition 
of  the  property  owners  to  the  improvement,  they  were  well  calculated 
to  deter  bidders,  unless  they  added  a  substantial  sum  to  the  amount 
they  would  have  otherwise  named  in  their  bids  for  the  loss  they  might 
incur  by  reason  of  these  provisions  of  the  specifications.  Again,  the 
evidence  shows  that  by  the  specifications  payments  for  the  work  should 
not  be  made  earlier  than  120  days  after  the  completion  and  acceptance 
of  the  work,  out  of  money  received  from  assessments  duly  made  on 
account  of  the  improvement;  and  that  the  time  of  payment  was  chang- 
ed in  the  contract,  so  that  payment  of  the  work  should  be  made,  after 
the  completion  and  acceptance  thereof,  out  of  assessments  therefor 
on  property  benefited  thereby  other  than  that  owned  by  the  city.  This 
difference  in  the  time — some  four  months — for  the  payment  of  the 
contract  price  was  substantial,  and  was  manifestly  for  the  benefit  of 
the  contractor,  as  the  evidence  shows  that  the  estimated  cost  of  the 
work  was  over  $50,000.  Hut  this  advantage  was  not  olTercd  to  other 
bidders  by  the  invitation  to  bid  on  the  basis  of  the  specifications.  The 
evidence  tends  to  show  that  in  f)(hcr  material  respects  the  specifica- 
tions were  not  followed  in  the  contract,  and  that  the  changes  were 
beneficial  to  the  contractor.  I'pon  the  whole  evidence,  we  arc  of  the 
opinion  that  the  finding  in  {|uestion  is  fairly  sustained  by  the  evidence, 
and  we  accordingly  hold  that  the  contract  was  void. 

There  are  several  assignments  of  error  as  to  the  finding  and  conclu- 
sion of  the  trial  court  with  reference  to  the  paving  of  the  intersections 


IS6  CONTRACTS 


of  the  street.  We  do  not  consider  them,  for  the  reason  that  they  are 
ininiaterial  in  view  of  the  ground  upon  which  we  sustain  the  conclu- 
sion of  the  trial  court  that  the  contract  is  void.    Order  affirmed.^ 


IV.  Term  and  Duration  of  Contract — Power  to  Bind  Successors  ^ 


WESTMINSTER  WATER  CO.  v.  CITY  OF  WESTMINSTER. 

(Court  of  Appeals  of  Maryland,  1904.     98  Md.  551,  56  Atl.  990,  64  L.  R.  A. 

•G80,  103  Am.  St.  Rep.  424.) 

Petition  by  the  Westminster  Water  Company  against  the  mayor 
and  common  council  of  the  city  of  Westminster  for  mandamus.  Appli- 
cation denied,  and  the  company  appeals. 

McSherry,  C.  J.**  This  is  an  appeal  from  the  circuit  court  for 
Carroll  county,  and  was  taken  from  an  order  refusing  to  grant  a  writ 
of  mandamus  which  had  been  asked  for  by  the  appellant  against  the 
appellee.     The  facts  which  are  necessary  to  be  stated  are  as  follows : 

By  chapter  88,  p.  136,  of  the  Acts  of  the  General  Assembly  of  1876, 
it  was  provided  that  "the  mayor  and  common  council  of  Westminster 
may  levy  annually  a  tax  not  exceeding  five  cents  on  every  $100  to  be 
used  and  applied  to  the  payment  of  water  rents  for  the  use  of  water 
for  the  public  uses  of  said  city,  that  is  to  say,  for  use  on  the  public 
streets  of  said  city,  and  for  the  suppression  of  fires,  to  any  incorpo- 
rated company  which  may  be  organized  for  the  introduction  of  a 
supply  of  water  into  said  city ;  and  the  said  mayor  and  common  coun- 
cil may  contract  with  any  such  incorporated  or  to  be  incorporated 
company  for  the  introduction  of  water  into  the  said  city,  to  pay  such 
company  annually  in  such  sum  not  exceeding  the  proceeds  of  said  levy 
of  five  cents  as  aforesaid,  as  the  said  mayor  and  common  council  may 
deem  proper,  provided  that  no  such  payment  shall  be  made  until 
water  shall  have  been  actually  introduced  into  said  city  by  such  com- 
pany ;  and  provided  further  that  said  levy  of  five  cents  as  aforesaid 
shall  not  be  made  or  used  and  applied  for  any  other  purposes  whatso- 
ever." On  ]\Iay  12,  1883,  the  mayor  and  council  of  Westminster 
passed  an  ordinance  known  as  No.  62,  wherein,  amongst  other  things, 
it  was  provided  that  when  mains  of  the  size  and  length  described  in 
the  ordinance  "shall  be  laid  through  the  streets  and  alleys  of  the 
city  of  Westminster  with  water  therein  suitable  and  sufficient  for  fire 
extinguishing,  street  sprinkling  and  domestic  purposes,  by  the  West- 

7  Compare  City  of  Maukato  v.  Barber  Asphalt  Pav.  Co.,  142  Fed.  329,  73 
CCA,  4.39  iim-j). 

8  For  discussion  of  principles,  see  Cooley,  Mun.  Corp.  §  7-6. 

9  Part  of  the  opinion  is  omitted. 


TERM  AND  DURATION — POWER  TO  BIND  SUCCESSORS  187 

minster  \\''ater  Company,  a  body  corporate  of  Carroll  county,  then  and 
in  that  event  the  mayor  and  common  council  of  Westminster  shall  an- 
nually levy  and  pay  to  the  said  water  company  the  sum  of  five  cents 
on  each  $100  of  the  assessed  value  of  all  property  within  the  limits 
of  the  said  city  subject  to  the  levy  and  taxation  by  said  city  whatever 
the  sum  may  be,  less  one-third  of  the  expenses  of  collecting  said  water 
taxes  each  year.  Provided  that  the  amount  of  the  said  tax  to  be  paid 
said  company  in  any  one  year  shall  not  be  lower  than  that  produced 
by  the  valuation  or  assessment  of  the  year  1883." 

On  the  faith  of  the  aforegoing  and  other  terms  of  the  ordinance,  all 
of  which  were  accepted  by  the  water  company,  the  latter  expended 
large  sums  of  money  in  erecting  a  plant,  building  reservoirs,  laying 
mains,  and  erecting  fire  plugs  in  accordance  with  the  provisions  of  the 
ordinance  just  named.  The  ordinance  thus  became  the  contract  be- 
tween the  company  and  the  city.  On  June  29,  1885,  a  supplemental 
agreement  was  entered  into  between  the  water  company  and  the  mayor 
and  common  council  of  Westminster,  whereby  some  of  the  provisions 
of  the  contract  made  by  Ordinance  62  were  modified ;  but  the  terms 
of  that  supplemental  agreement  need  not  be  stated,  further  than  the 
one  we  shall  now  quote,  namely:  "Now  therefore  for  the  purpose  of 
rendering  said  ordinance  clearer  and  to  avoid  any  future  misunder- 
standing concerning  it,  this  agreement  is  now  entered  into  by  the  said 
contracting  parties  to  bind  them  and  their  successors  in  office  forever, 
as  follows."  There  are  further  provisions,  which  we  have  said  it  was 
unnecessary  to  quote  in  this  opinion.  The  tax  was  levied  annually 
and  paid  to  the  water  company  under  the  provisions  of  Ordinance  62 
and  the  supplemental  agreement  just  alluded  to,  until  the  year  1902, 
when  the  mayor  and  common  council  passed  an  ordinance  (No.  145) 
repealing  Ordinance  No.  62,  and  declaring  that  "the  contract  in  said 
ordinance  with  the  Westminster  Water  Company  is  hereby  repealed 
and  terminated,"  and  in  making  the  levy  for  the  year  1902  the  mayor 
and  common  council  omitted  to  levy  for  the  use  of  the  Westminster 
Water  Company  the  sum  of  5  cents  on  each  $100  of  the  assessed 
value  of  the  property  within  the  limits  of  the  city,  as  previously  levied 
under  the  Cjrdinance  Xo.  62  and  the  supplemental  agreement  referred 
to.  'i'hereupon  the  pending  ]K'tition  for  a  mandamus  requiring  the 
mayor  and  council  of  Westminster  to  make  the  levy  of  5  cents  for 
the  use  of  the  Westminster  Water  Company  was  filed.     *     *     * 

It  has  been  more  than  once  held  by  this  court,  following  the  Eng- 
lish doctrine,  that  the  writ  of  mandamus  is  not  one  whicli  is  granted 
ex  dcbito  justiti.x.  State  v.  Latrobc.  81  Md.  222,  31  Atl.  788.  There 
must  be  a  clear  and  uin'|iii\<K;il  Ic^al  rii^hl  to  be  enforced,  and  there 
must  not  be  any  aficfiuate  remedy  other  th;u)  mandamus  for  its  en- 
forcement. Brown  v.  llragunier,  79  iMd.  234,  29  Atl.  7.  If  the  right 
be  doubtful,  mandamus  will  not  lie.  If  the  right  be  clear,  and  there 
be  some  other  adequate   remedy,    that  remcfly,    and  not  mandamus, 


1S8  CONTRACTS 

must  be  invoked.  Obviously,  tben,  the  inquiry  at  the  threshold  of  the 
case  is,  is  the  right  which  the  water  company  sets  up  and  seeks  to 
have  enforced  such  a  clear  legal  and  unequivocal  right  as  can  be  en- 
forced by  this  process?  Under  the  supplemental  agreement  it  will  be 
borne  in  mind  that  the  contract  of  1883  distinctly  and  unequivocally 
purports  to  bind  both  the  municipality  and  the  water  company  forever. 
The  municipality  is  obligated  to  levy  each  year,  in  perpetuity,  5  cents 
on  the  $100  of  the  assessed  value  of  the  property  within  the  city,  and 
to  pay  the  proceeds  of  the  levy  to  the  water  company,  in  consideration 
for  the  latter 's  supplying  from  its  works  water  for  public  uses. 

There  are  two  difficulties  in  the  path  of  the  enforcement  of  that 
contract  by  mandamus :  First,  it  has  been,  as  it  must  be,  conceded  that 
no  municipality,  without  express  legislative  sanction,  has  authority  to 
bind  itself  to  levy  taxes  for  the  payment  of  money  for  all  time  to  come, 
when  the  taxes,  if  thus  levied,  are  to  be  applied  as  are  those  we  are 
dealing  with.  Secondly,  the  inequality  and  the  want  of  mutuality  in 
the  provision,  which,  without  regard  to  varying  circumstances  that 
might  arise  in  the  future,  fixes  five  cents  as  the  rate  to  be  levied  each 
year,  would  of  itself  stamp  the  contract  as  one  not  creating  such  a 
clear  and  unequivocal  legal  right  in  the  relator  as  to  warrant  the  issu- 
ing of  a  rtiandamus  for  its  enforcement. 

First,  starting  with  the  postulate  that  without  previous  legislative 
sanction  a  contract  of  the  kind  we  are  considering  cannot  be  made  in 
perpetuity,  because  it  would  be  ultra  vires,  it  is  argued  that  the  true 
interpretation  of  the  agreement  is  not  that  it  was  to  continue  or  was 
designed  to  continue  forever,  but  that  it  was  meant  to  last  for  40 
years,  and  no  longer,  because  that  period  was  the  limit  of  the  cor- 
porate life  of  the  water  company;  and  it  was  vigorously  and  ably  in- 
sisted that  a  contract  of  this  character  for  40  years,  made  under  the 
circumstances  we  have  narrated,  was  neither  illegal  nor  unreasonable. 
Now,  it  is  true  the  books  are  full  of  cases  where  contracts  for  the 
furnishing  of  water  by  water  companies  to  municipalities,  and  run- 
ning for  quite  a  number  of  years,  have  been  before  the  courts  repeat- 
edly for  consideration.  Thus,  in  the  case  of  New  Orleans  Waterworks 
Company  v.  Rivers,  115  U.  S.  674,  6  Sup.  Ct.  273,  29  L.  Ed.  525,  a 
contract  for  50  years  was  sustained ;  in  Walla  Walla  v.  Walla  Walla 
Water  Company,  172  U.  S.  9,  19  Sup.  Ct.  77,  43  L.  Ed.  341,  a  contract 
for  25  years  was  sustained ;  in  Vicksburg  Water  Company  v.  Vicksburg, 
185  U.  S.  65,  22  Sup.  Ct.  585,  46  L.  Ed.  808,  a  contract  for  30  years 
was  held  not  unreasonable ;  and  in  Bennett  Water  Company  v.  Mill- 
vale,  200  Pa.  613,  50  Atl.  155,  a  contract  for  20  years  was  upheld. 
Columbus  Water  Company  v.  Columbus,  48  Kan.  99,  28  Pac.  1097, 
15  L.  R.  A.  354.  But  it  will  be  noticed  that  in  all  of  these,  and  sim- 
ilar cases  which  might  be  cited,  there  was  a  specific  claim  that  a 
definite  period  of  time  had  been  distinctly  agreed  upon ;  and  the  ques- 
tion in  some,  though  not  in  all,  was  whether  that  definite  period  was 
a  reasonable  one.     *     *     * 


TERM  AND  DURATION — POWER  TO  BIND  SUCCESSORS  189 

In  none  of  the  foregoing  cases  was  the  situation  presented  with 
which  we  are  confronted  here.  The  nearest  approach  to  the  case  at 
bar  is  the  one  last  above  cited.  If  this  contract  had  been  for  40  years, 
then  the  single  question  to  be  considered  would  be  whether  that  was 
a  reasonable  time;  but  the  contract,  on  its  face,  purports  to  run  for- 
ever, and  the  argument  is  that  inasmuch  as  the  duration  of  the  water 
company's  charter  was  limited  to  40  years,  when  the  agreement  was 
entered  into,  the  contract,  though  professing  to  run  forever,  must  be 
read  as  if  it  ran  for  40  years,  and  no  longer;  and  then,  reading  it  in 
that  way,  we  are  asked  to  say  that  the  40  years  would  not  be  unrea- 
sonable. But  the  fallacy  of  the  argument  lies  in  this :  that  we  must 
prescind  from  the  contract  the  words  that  the  parties  to  it  have  them- 
selves deliberately  incorporated  therein,  and  we  must  then  substitute 
for  the  words  thus  eliminated  others  that  the  contracting  parties  did 
not  see  fit  to  use,  and  obviously  did  not  intend  to  use.  That  is  to  say, 
we  must  declare  that  the  contract  as  made  is  one  that  is  void  because 
the  parties  were  without  power  to  enter  into  it,  but,  inasmuch  as  it 
is  void  on  that  ground,  the  court  will  by  construction  make  a  new  one 
for  them,  though  they  did  not  see  fit  or  intend  to  make  it  for  them- 
selves, so  that  when  made  by  the  court  the  new  contract  would  be 
one  that  is  valid,  because  when  thus  made  it  would  run  only  for  a 
reasonable  time. 

By  what  authority  can  the  court  limit  the  duration  of  the  contract 
to  a  term  of  40  years,  when  it  was  the  declared  intention  of  the  par- 
ties to  it  that  it  should  continue  in  force  forever,  as  stated  in  and  de- 
clared by  the  supplemental  agreement,  which  was  framed  for  the  very 
purpose  of  making  clear  their  object  in  this  particular?  Why  say 
40  years,  now  that  the  charter  of  the  water  company  has  been  in- 
definitely extended  by  the  act  of  1900,  c.  489,  and  obviously  so  ex- 
tended to  the  end  that  the  design  of  the  contracting  parties  that  the 
contract  should  remain  operative  for  all  time  might  be  given  effect? 
The  extension  of  the  charter  of  the  water  company  is  a  circumstance 
not  to  be  overlooked  in  determining  what  the  parties  understood  to  be 
the  meaning  of  the  original  contract  as  to  the  period  of  time  the 
agreement  was  to  run.  No  case  has  been  cited  where  the  court  has 
changed  an  ultra  vires  agreement  into  a  valid  undertaking,  and  we 
are  not  prepared  to  say  that  a  court,  upon  an  application  for  a  man- 
damus, is  at  liberty,  first,  to  declare  void  a  contract  under  which  the 
right  to  have  a  mandamus  is  asserted,  and,  secondly,  in  place  of  the 
void  contract,  to  construct  a  valid  one,  in  order  that  the  writ  may  be 
issued.  Until  this  can  be  legally  done,  the  application  as  here  pre- 
sented must  fail.     *     *     *     Affirmed. 


190  CONTRACTS 


V.  Ultra  Vires  Contracts  »•' 


BELL  V.  KIRKLAND. 

(Supreme  Court  of  Minnesota,  1907.     102  Minn.  213,  113  N.  W.  271.  13  L.  R. 
A.  [N.  S.J  793,  120  Am.  St.  Rep.  G21.) 

Action  by  Daniel  L.  Bell  against  Edward  J.  Kirkland  and  another. 
Verdict  for  plaintiff.  From  an  order  denying  a  new  trial,  William  H. 
Ulnier  and  John  Wagener  appeal. 

Jaggard,  J.^^  Plaintiffs  and  respondents  brought  an  action 
against  defendants  and  appellants  to  recover  the  unpaid  balance  for 
materials  furnished  to  one  Kirkland  to  be  used  in  the  construction  of 
the  "Somerville  sewer."  Kirkland  contracted  to  construct  the  sewer, 
and,  as  principal,  signed  an  instrument  in  which  the  appellants  joined 
as  sureties,  which  purported  to  be  a  bond  to  the  city  of  St.  Paul  con- 
ditioned for  the  performance  of  the  contract,  and  for  the  payment 
for  the  labor  and  materials  furnished  in  its  execution.  The  total 
amount  of  the  account  was  $6,286.30.  The  balance  unpaid  was  $2,- 
967.55.  The  amount  of  the  bond  was  $59,200.  The  present  is  a  test 
case.  The  court  found  for  the  plaintiffs.  It  found  as  facts,  inter  alia, 
that  the  course  of  the  sewer  carried  it  under  property  hereinafter 
more  fully  set  forth  as  to  which  the  city  had  acquired  no  right  by  con- 
demnation or  grant.  This  appeal  was  taken  from  an  order  denying 
defendant's  motion  for  a  new  trial. 

Defendants'  essential  argument  is  that,  if  the  contract  was  ultra 
vires  and  void,  so  also  was  the  bond,  and  that  the  agreement  was 
shown  to  have  been  ultra  vires  and  void.  In  the  first  place,  the  agree- 
ment required  the  construction  of  a  sewer  through  property  not  owned 
by  the  city.  "The  sewer  provided  for  in  the  contract  was  a  main 
sewer  of  about  4,200  feet  in  length.  It  is  cut  into  two  almost  equal 
parts  by  a  railroad  right  of  way  and  adjoining  private  property  for 
20o  feet.  It  is  proposed  to  construct  it  to  the  Mississippi  river  as  an 
outlet.  In  connection  with  the  latter  proposition,  it  is  argued  that  a 
sewer  is  of  no  value  unless  continuous,  or  unless  it  has  an  outlet.  It 
cannot  reach  the  river  because  the  last  85  feet  is  owned  by  the  United 
States  government.  The  result  was  two  disjointed  pieces  of  sewer 
without  an  outlet.  The  significant  fact  is  that  the  ultra  vires  part  of 
the  contract  leaves  the  sewer  valueless.  A  contract  to  construct  a 
useless  sewer  in  private  property  is  beyond  the  'power  of  the  city." 
The  invalidity  appears  upon  the  face  of  the  contract.  In  the  second 
place,  defendants'  argument  proceeds,  the  contract  was  not  entered 

10  For  discussion  of  principles,  see  Cooley,  Mun.   Corp.  §§  77-79. 

11  Part  of  this  opinion  and  all  of  the  concurring  opinion  of  Elliott,  J.,  are 
omitted. 


ULTRA  VIRES  CONTRACTS  191 

into  in  accordance  with  the  mandatory  provisions  of  the  city  charter. 
We  have  examined  the  record  adduced  in  support  of  this  contention. 
It  may  fairly  be  regarded  as  showing  a  failure  to  let  the  contract  as 
required  by  the  city  charter.  It  is  unnecessary  to  consider  the  details 
of  this  want  of  compliance.  It  was,  in  fact,  made  by  the  board  of 
public  works,  the  proper  body.  A  valid  preliminary  order,  a  specifi- 
cation of  the  portion  of  its  cost  to  be  paid  out  of  general  funds  and 
other  essentials,  may  properly  be  conceded  to  have  been  wanting. 

1.  A  proper  preliminary  consideration  of  the  legal  questions  thus 
presented  involves  a  brief  reference  to  the  attitude  of  the  courts  to 
the  doctrine  of  ultra  vires.  That  doctrine  has  been  attacked  with  an 
earnestness  amounting  sometimes  to  asperity.  "The  doctrine  of  ultra 
vires  is  of  very  modern  date  and  entirely  the  creation  of  the  courts. 
There  is  no  such  thing  as  ultra  vires  in  the  case  of  a  common-law 
corporation  (Case  of  Sutton's  Hospital,  10  Coke,  30,  C),  and  it  is  not 
enacted  in  any  statute.  It  affords,  perhaps,  the  most  remarkable  in- 
stance in  the  history  of  English  jurisprudence  of  the  making  of  law 
by  the  judges;  and,  having  once  been  created,  it  is  now  probably 
saddled  onto  the  backs  of  the  courts,  like  Sinbad's  'Old  Man  of  the 
Sea',  not  to  be  shaken  off."  6  Cent.  Law  Jour.  3.  "The  reasoning 
(on  the  subject)  involves  a  strange  confusion  of  ideas."  2  Morawetz, 
Pub.  Corp.  18,  §  649.  Judge  Seymour  D.  Thompson  regards  the  mod- 
ern doctrine  of  ultra  vires  as  a  revolt  against  the  ancient  doctrine 
based  on  a  species  of  moral  reformation.  His  conclusion  is  "that  the 
doctrine  of  ultra  vires  has  no  proper  place  in  the  law  of  private  cor- 
porations, except  in  respect  of  contracts  which  are  bad  in  themselves, 
the  making  of  which  is  prohibited  by  considerations  of  public  morality, 
of  justice,  or  of  a  sound  public  policy,  and  which,  therefore,  stand 
upon  such  a  footing  that  neither  party  can  be  regarded  as  innocent  or 
blameless  in  entering  into  them."  28  Am.  Law  Rev.  398.  And  sec 
5  Thompson,  Corp.  §  5969. 

In  9  Harv.  Law  Rev.  p.  255,  Mr.  George  Wharton  Pepper  combats 
— and  we  think  successfully — the  existence  of  any  clear  distinction  be- 
tween the  princii)lcs  of  the  earlier  and  of  the  present  decisions  or  of 
inextricable  confusion  on  the  subject  in  the  American  reports.  He 
recognizes,  however,  that  "in  modern  times  there  has  been  a  steady 
movement  in  the  direction  of  enforcing  unauthorized  or  prohibited 
contracts  between  the  parties."  The  tendency  to  what  Mr.  Cooke  (28 
Am.  Law  Rev.  227)  calls  "the  extinction  of  the  doctrine"  is  certainly 
very  marked.  11  Harv.  Rev.  387;  14  Harv.  Law  Rev.  332;  13  Am. 
Law  Rev.  661.  After  an  exhaustive  discussion  <jf  relevant  authorities 
in  Re  Assignment  Mut.  Guaranty  Fire  Ins.  Co.  v.  Barker,  107  Iowa, 
143.  77  N.  W.  868.  70  Am.  St.  Rej).  149,  Mr.  Freeman  concludes: 
"After  a  study  of  the  cases  upon  the  subject,  the  impression  is  forced 
upon  us  that  the  doctrine  of  ultra  vires,  as  applied  to  the  contracts  of 
I>rivate  corporations,  has  almost  lost  its  meaning.     The  undermining 


102  CONTRACTS 

of  the  foundation  upon  which  it  has  rested  from  its  inception  has  pro- 
ceeded sinuihaneously  from  different  directions  until  the  doctrine  itself 
seems  almost  ready  to  fall  of  its  own  weight.  The  original  rule  that 
an  ultra  vires  contract  was  illegal  and  void  could  give  rise  to  no  rights, 
nor  be  validated  by  any  performance  or  application  of  the  law  of 
estoppel,  has  practically  been  erased  from  the  law,  for  those  courts 
which  do  not  contradict  it  directly  do  so  indirectly  by  their  manner  of 
applying  it.  An  appeal  to  the  public  interest  that  private  corporations 
should  be  restricted  in  the  making  of  contracts  to  the  scope  of  their 
granted  powers  is  growing  more  and  more  ineffectual  where  the  rights 
of  persons  innocently  entering  into  ultra  vires  contracts  with  such  cor- 
porations intervene." 

With  respect  to  contracts  by  municipal  corporations,  one  current 
opinion  is  that:  "The  contract  of  corporations,  whether  public  or 
private,  stand  on  the  same  footing  with  contracts  of  natural  persons, 
and  depend  on  the  same  circumstances  for  their  validity  and  effect. 
The  doctrine  of  ratification  and  estoppel  is  as  applicable  tc  corpora- 
tions as  to  individuals."  Argenti  v.  City  of  San  Francisco,  16  Cal. 
256,  277.  We  incline,  however,  to  accept  the  views  of  Judge  Dillon  on 
the  subject,  thus  summarized  by  counsel  for  the  defendants:  "The 
general  principle  of  law  is  settled  beyond  controversy  that  the  agents, 
officers,  or  even  the  city  council  of  municipal  corporations  cannot  bind 
the  corporation  by  any  contract  which  is  beyond  the  scope  of  its  pow- 
gj-  *  *  *  'j^j^jg  history  of  the  workings  of  municipal  bodies  has 
demonstrated  the  salutary  nature  of  this  proposition,  and  it  is  the 
part  of  true  wisdom  to  keep  the  corporate  wings  clipped  down  to  the 
lawful  standard.  It  results  from  this  doctrine  that  contracts  not  au- 
thorized by  the  charter  or  other  legislative  act — that  is,  not  within  the 
scope  of  the  powers  of  the  corporation  under  any  circumstances — are 
void."  Dillon,  Mun.  Corp.  (4th  Ed,)  457  (381).  And  see  Mayor  v. 
Ray,  19  Wall.  468,  22  L.  Ed.  164;  Newbery  v.  Fox,  37  Minn.  141,  33 
N.  W.  333,  5  Am.  St.  Rep.  830.  There  is,  however,  an  unmistakable 
and  proper  tendency  to  apply  to  both  classes  of  corporations  the  prin- 
ciple that  "the  doctrine  of  ultra  vires,  when  invoked  for  or  against 
a  corporation,  should  not  be  allowed  to  prevail  where  it  would  defeat 
the  ends  of  justice  or  work  a  legal  wrong."  Ohio  R.  R.  Co.  v.  Mc- 
Carthy, 96  U.  S.  258,  24  L.  Ed.  693. 

2.  It  is  to  be  kept  in  mind  that  the  term  "ultra  vires"  is  used  in 
many  different  senses.  8  Words  &  Phrases,  7165,  7166.  Two  differ- 
ent uses  of  the  term  were  pointed  out  in  Minn.  Thresher  Mfg.  Co.  v. 
Langdon,  44  Minn.  37,  46  N.  W.  310,  three  in  Bissell  v.  M.,  etc.,  R.  R. 
Co.,  22  N.  Y.  258,  and  four  in  Green's  Brice's  Ultra  Vires,  33-35. 
For  present  purposes,  it  suffices  to  refer  especially  to  two  different 
meanings.  The  first  of  these  describes  a  contract  which  is  not  within 
the  scope  of  the  powers  of  a  corporation  to  make  under  any  circum- 
stances, or  for  any  purposes;    for  example:    "Where  a  corporation 


ULTRA    VIRES   CONTRACTS  193 

authorized  only  to  build  a  railroad  engages  in  banking."  Mitchell,  J., 
in  Minn.  Thresher  Co.  v.  Langdon,  44  Minn.  41,  46  N.  W.  312. 
"Where  the  Legislature,  for  instance,  having  authorized  you  to  make 
a  railway,  you  cannot  go  and  make  a  harbor."  Kindersley,  V.  C,  in 
Earl  of  Shrewsbury  v.  North  Staffordshire  Ry.  Co.,  35  L.  J.  Ch.  156, 
172.  So,  in  the  cases  to  which  defendant  refers  us,  it  was  held  to  be 
wholly  outside  of  a  city's  power  to  "surrender  control  over  streets" 
(State  V.  ^linn.  Transf.  Ry.  Co.,  80  Minn.  108,  83  N.  W.  32,  50  L. 
R.  A.  656) ;  to  pay  money  to  aid  in  building  a  shoe  factory  within  its 
limits  (City  v.  Hednian,  53  Minn.  525,  55  N.  W.  7Z7) ;  to  aid  in  the 
construction  of  a  dam  for  the  purpose  of  improving  a  private  water 
power  (Coates  v.  Campbell,  37  Minn.  498,  35  N.  W.  366);  to  con- 
struct a  building  for  the  use  of  another  municipality  or  other  third 
person  (Borough  v.  Sibley,  28  Minn.  515,  11  N.  W.  91;  Village  v. 
County  of  McLeod,  40  Minn.  44,  41  N.  W.  239) ;  or  without  authority 
to  buy  real  estate  (Bazille  v.  Commissioners,  71  Minn.  198,  73  N.  W. 
845).  For  further  illustrations,  see  Ingersoll  on  Public  Corporations, 
292,  293. 

The  second  of  these  meanings  refers  to  contracts  of  a  class  which  the 
corporation  had  a  right  to  execute,  but  with  respect  to  which  there 
has  been  some  irregularity  or  defect  in  the  actual  exercise  of  the 
power  "in  some  particular  or  through  some  undisclosed  circumstance" 
affecting  the  individual  contract  in  issue.  The  former  class  is  ultra 
vires  in  the  primary,  and  really  only  proper  use  of  the  term,  while 
in  the  second  it  is  merely  secondary.  Mitchell,  J.,  in  Minn.  Thresher 
Mfg.  Co.  V.  Langdon,  44  Minn.  Z7 ,  46  N.  W.  310.  That  is  to  say, 
an  ultra  vires  municipal  contract,  in  its  true  sense,  is  a  contract  relat- 
ing to  matters  wholly  outside  the  charter  powers  of  a  corporation.  2 
Dillon,  Mun.  Corp.  §§  935,  936.  In  Miners'  Ditch  Co.  v.  Zellerbach, 
37  Cal.  543,  578,  99  Am.  Dec.  30,  Sawyer,  C.  J.,  justly  remarked: 
"These  distinctions  must  be  constantly  borne  in  mind  when  considering 
a  question  arising  out  of  dealings  with  a  corporation.  When  an  act 
is  ultra  vires  in  the  first  sense  mentioned,  it  is  generally,  if  not  always, 
void  in  toto,  and  the  corporation  may  avail  itself  of  the  plea.  But, 
when  it  is  ultra  vires  in  the  second  sense,  the  right  of  the  corporation 
to  avail  itself  of  the  pica  will  depend  ui)on  the  circinnstanccs  of  the 
case."  And  see  City  of  Valjjaraiso  v.  Water  Co.,  30  Ind.  App.  316, 
65  N.  R.  1063 ;  Rogers  v.  City  of  Omaha,  76  Nel).  187,  107  N.  W. 
214;  5  Thompson,  Corps.  §§  5975,  5976,  5977;  Dillon,  Mun.  Corp.  § 
936;   2  Current  Law,  977. 

3.  The  iiu|uiry  naturally  arises  as  to  the  sense  in  which  the  present 
contract  is  ultra  vires.  In  the  first  place,  it  is  ultra  vires  in  the  sec- 
ondary and  restricted  sense  only.  The  city  had  the  undoubted  charter 
power  to  contract  for  the  construction  of  a  sewer.  So  to  do  was 
strictly  within  the  object  of  the  creation  of  the  corporation.  That  was 
CooLEY  Cases  Mun.C. — 13 


1!)4  CONTRACTS 

a  familiar  and  necessary  part  of  its  function  in  government.  The 
contract  was  not  of  the  class  of  contracts  which  are  void  for  want 
of  legal  capacity  on  the  part  of  the  city  to  make  them.  On  the  con- 
trary, it  was  such  a  one  as  the  city  could  properly  have  made  although 
it  may  be  admitted  that  this  particular  contract  it  ought  not  to  have 
made.  It  is  not  at  all  such  a  contract  as  is  prohibited  by  statute  or 
public  morals,  any  more  than  by  its  subject-matter.  If  the  officers 
executing  it  had  been  regularly  authorized,  and  if  consent  of  the 
owners  of  all  premises  through  which  it  was  to  run  had  been  obtained, 
it  would  unquestionably  have  been  a  valid  contract. 

In  the  second  place,  the  present  contract  is  ultra  vires,  if  at  all,  as  to 
a  small  part  only.  It  is  convenient  to  postpone  the  consideration  of 
irregularities  in  the  letting  of  the  contract,  and  to  here  refer  only  to 
the  failure  of  the  city  to  condemn.  So  far  as  that  failure  is  addressed 
to  private  property,  which  the  city  could  have  condemned,  the  contro- 
versy is  disposed  of  by  the  ruling  in  Keough  v.  St.  Paul,  66  Minn. 
114,  68  N.  W.  843.  It  was  there  held  that  the  contract  for  grading 
a  street  is  not  ultra  vires,  because  the  council  has  omitted  to  establish 
gradient  lines,  nor  because  condemnation  proceedings  have  not  been 
consummated.  In  the  last  analysis,  however,  defendants  rely  on  the 
fact  that  the  outlet  of  the  sewer,  to  the  extent  of  85  feet,  was  owned 
by  the  government,  and  that  the  contract  was  beyond  the  power  of  the 
city,  because  it  involved  the  commission  of  a  trespass.  In  this  con- 
nection we  are  cited  to  Sang  v.  City  of  Duluth,  58  Minn.  82,  59  N.  W. 
878.  It  was  there  held  that  a  contractor  could  not  recover  loss  of 
profits  because  the  city  had  not  acquired  the  right  of  way  across  the 
property  of  a  railway  company  for  a  street  which  he  undertook  to 
grade,  pave,  and  otherwise  improve.  As  to  such  a  part  of  the  contract, 
it  was  held  to  be  ultra  vires.  It  was  said  in  that  case :  "Plaintiff 
does  not  claim  to  recover  for  any  work  so  performed,  but  claims  loss 
of  profits  for  being  prevented  from  performing  on  the  railroad  right 
of  way  and  loss  by  depreciation  of  materials  purchased  for  that  part 
of  the  work."  That  case  is  obviously  not  at  all  inconsistent  with 
authorities  holding  that  "an  entire  contract  is  not  invalid  because  part 
thereof  is  ultra  vires.  *  *  *  "  ^  court  should  not  destroy  a  con- 
tract made  by  parties  further  than  some  good  reason  requires.  Elliott, 
Mun.  Corps.  §  291.  And  see  111.  Trust  &  Savings  Bank  v.  Arkansas- 
City,  76  Fed.  271,  22  C.  C.  A.  171,  34  L.  R.  A.  518;  Spier  v.  Kala- 
mazoo, 138  Mich.  652,  101  N.  W.  846,  2  Curr.  Law,  977,  notes  82,  83. 
The  decision  most  nearly  similar  to  the  case  at  bar  in  this  connection 
which  we  have  been  able  to  find  is  Coit  v.  City  of  Grand  Rapids,  115 
Mich.  493,  71  N.  W.  811.  This  is  the  rule.  That  a  contract  void  as 
to  an  inconsiderable  or  insignificant  part  is  as  to  the  rest  valid  is  only 
one  of  its  applications. 

In  the  third  place,  the  features  of  this  contract  objected  to  remain 
ultra  vires  in  this  restricted  sense  and  to  this  limited  extent,  only  sa 


ULTBA    VIRES   CONTRACTS  195 

far  as  is  possible  with  respect  to  an  executed  contract.  The  learned 
trial  judge  in  his  memorandum  said:  "The  city  paid  large  sums  of 
money  upon  this  contract  to  the  defendant  Kirkland  as  the  work 
progressed.  One  of  these  sureties  received  one  of  these  payments. 
Neither  of  Kirkland's  sureties  can  lawfully  plead  that  the  contract 
between  the  city  and  Kirkland  is  ultra  vires  because  so  far  as  either 
of  them  is  interested,  and  so  far  as  concerns  this  case,  the  contract  has 
been  fully  performed.  Where  an  ultra  vires  contract  has  been  fully 
performed  by  both  parties,  it  is  justly  held  that  it  is  no  longer  assail- 
able by  either.  Note  In  re  ^Mutual  Ins.  Co.,  70  Am.  St.  Rep.  166." 
And  see  2  Alorawetz,  P.  C.  §  689 ;  Hunt  v.  Hauser  Malting  Co.,  90 
Minn.  282,  96  N.  W.  85,  collecting  cases  at  285. 

The  learned  trial  judge  proceeds :  "The  above  treats  of  contracts 
with  private  corporations,  but  it  is  applicable  in  this  case  where  the 
rights  of  the  municipal  corporation  are  not  involved."  In  the  leading 
case  of  Hitchcock  v.  Galveston,  96  U.  S.  341,  24  L.  Ed.  659,  Mr.  Jus- 
tice Strong  approves  of  the  following  rule  laid  down  in  State  Board 
v.  Street  Railway  Co.,  47  Ind.  407,  17  Am.  Rep.  702,  in  an  action 
against  a  municipal  corporation :  "Although  there  may  be  a  defect  of 
power  in  a  corporation  to  make  a  contract,  yet,  if  the  contract  made 
by  it  is  not  in  violation  of  its  charter  or  of  any  statute  prohibiting  it, 
and  the  corporation  has  by  its  promise  induced  a  party  relying  on  the 
promise  and  in  execution  of  the  contract  to  expend  money  and  per- 
form his  part  thereof,  the  corporation  is  liable  on  the  contract."  This 
was  followed  and  approved  in  City  of  East  St.  Louis  v.  Gas  Light 
Co.,  98  111.  415,  38  Am.  Rep.  97.  In  Argenti  v.  City  of  San  Fran- 
cisco, 16  Cal.  256,  after  elaborate  examination  of  the  authorities,  re- 
covery on  an  executed  contract  with  the  city  was  allowed,  although 
there  was  no  evidence  that  the  officer  who  signed  them  was  expressly 
authorized.  To  the  same  effect  are  Rogers  v.  City  of  Omaha,  76  Neb. 
187,  107  N.  W.  214;  Uodewig  v.  Port  Huron,  141  Mich.  564,  104  N. 
W.  769;  Lines  v.  Village  Otego  (Sup.)  91  N.  Y.  Supp.  785;  Wilkins 
v.  Mayor,  30  N.  Y.  Sujjp.  424,  9  Misc.  Rep.  610;  City  of  Tyler  v. 
Jester,  97  Tex.  344,  78  S.  W.  1058;  City  of  Valparaiso  v.  Valparaiso 
City  Water  Co.,  30  Ind.  App.  316,  65  N.  E.  1063  (a  particularly  wcll- 
considcrcd  case) ;  City  of  Fergus  Falls  v.  Hotel  Co.,  80  Minn.  165, 
83  N.  W.  54,  50  L.  R.  A.  170,  81  Am.  St.  Rep.  249. 

We  have  referred  to  these  considerations  to  make  plain  the  re- 
stricted sense  and  extent  of  the  ultra  vires  aspect  of  this  contract  and 
its  executed  character,  as  well  as  the  trend  of  judicial  decision  con- 
cerning the  legal  pr)sition  of  plaintiff's  contract.  The  facts  that  as 
to  a  small  portion  of  a  contract  with  a  municipality  only  it  was  ul- 
tra vires  in  any  sense,  and  that  it  has  been  substantially  executed 
by  the  parties  basing  rights  of  actidu  upon  it,  are  strong,  if  not  con- 
clusive, considerations  for  refusing  to  hold  it  al)solutcIy  void.  It 
is,  however,  unnecessary,  and  because  of  the  course  the  argument 


lOG  CONTRACTS 


has  taken  in  this  court,  undesirable,  to  determine  whether  the  con- 
tract was  valid  in  the  sense  that  the  contractor  could  have  recov- 
ered on  it  from  the  city.     *     *     *     Affirmed. 


VI.  Same — Ratification  and  Estoppel " 


CITY  OF  FERGUS  FALLS  v.  FERGUS  FALLS  HOTEL  CO. 

(Supreme  Court  of  Minnesota,  1900.     80  Minn.  165,  83  N,  W.  54,  50  L.  R.  A. 

170,  81  Am.  St.  Rep.  249.) 

Lewis,  J.  Action  by  respondent  city  to  foreclose  a  mortgage 
upon  certain  hotel  property  in  the  city  of  Fergus  Falls.  Defense, 
that  the  city  cannot  maintain  an  action  to  enforce  securities  taken  on 
a  loan,  the  same  being  void,  against  public  policy,  and  ultra  vires. 
The  action  was  tried  by  the  court  without  a  jury,  and  resulted  in  an 
order  for  judgment  in  favor  of  respondent.  Defendant  appeals  from 
an  order  denying  its  motion  for  a  new  trial. 

The  trial  court  found  that  in  1890  one  Bell  and  wife  executed 
and  delivered  to  the  First  National  Bank  of  Fergus  Falls  their  prom- 
issory note  for  $10,000,  due  five  years  from  date,  with  interest  at 
2  per  cent.,  and  at  the  same  time,  to  secure  the  note,  executed  and 
delivered  a  mortgage  upon  certain  premises  in  Fergus  Falls  known 
as  the  "Grand  Hotel  Property."  This  mortgage  was  duly  recorded, 
and  contained  the  usual  covenants  for  foreclosure  upon  default  of 
payment.  The  amount  of  the  consideration  of  the  mortgage — $10,- 
000 — was  paid  to  Bell  by  certain  officers  of  the  city  of  Fergus  Falls 
out  of  the  city  funds  as  a  loan  to  him  from  the  city.  The  bank  had 
no  interest  in  the  mortgage,  but  simply  held  it  in  trust  for  the  city, 
and  afterwards,  in  1896,  executed  and  delivered  to  the  city  a  declara- 
tion of  trust  to  that  effect.  In  1898  the  bank  duly  assigned  the  mort- 
gage to  the  city,  which  assignment  was  duly  recorded.  After  exe- 
cuting the  mortgage,  in  1891,  Bell  and  wife  deeded  the  property  to 
one  George  Duryee,  and  finally  the  premises  were  conveyed  to  de- 
fendant in  1892. 

On  the  question  of  notice  of  the  mortgage  by  defendant  when  it 
purchased  the  property  the  court  found  as  follows:  "That  said  de- 
fendant, the  Fergus  Falls  Hotel  Company,  at  the  time  of  the  making 
and  delivery  of  said  last-described  deed,  and  at  all  times  thereafter, 
had  actual  notice  and  knowledge  of  the  existence  of  said  mortgage, 
and  at  all  times  prior  to  the  beginning  of  this  action,  in  all  its  deal- 
ings with  plaintiff  in  reference  thereto,  said  defendant  recognized  and 
admitted  said  mortgage  as  a  valid  and  subsisting  lien  upon  the  prop- 

12  For  discu-ssion  of  principles,  see  Cooley,  Mun.  Corp.  §  78. 


ULTRA  VIEE9  CONTRACTS — RATIFICATION  AND  ESTOPPEL  197 

erty  described ;  that  said  mortgage  was  fully  considered  and  taken 
into  account  by  said  defendant  in  its  negotiations  for  the  purchase 
of  said  premises  and  in  arriving  at  the  purchase  price  to  be  paid 
therefor." 

The  court  further  found  that  the  property  was  sold  for  the  1893, 
1894,  and  1895  taxes,  and  that  respondent  was  forced  to  pay  $1,847 
to  protect  the  property  from  loss  under  tax  judgments;  that  the 
taxes  of  1897  were  not  paid,  and  the  property  was  sold  for  the  same 
in  May,  1899.  It  is  further  found  that  on  the  30th  day  of  April,  1895, 
the  principal  was  extended  for  the  period  of  five  years,  at  request 
of  appellant.  The  interest  was  paid  by  appellant  up  to  the  23d  day 
of  September,  1896. 

As  conclusions  of  law :  That  defendant  was  indebted  to  the  plain- 
tiff in  the  full  amount  of  the  principal,  interest,  and  taxes  paid,  and 
that  the  property  be  sold  to  satisfy  the  same. 

1.  Section  31,  c.  5,  of  the  Special  Laws  of  1883  provides:  "No 
money  shall  be  paid  out  of  the  city  treasury,  except  for  principal  or 
interest  on  bonds,  unless  such  payments  shall  be  authorized  by  a 
vote  of  the  city  council,  and  shall  then  be  drawn  out  only  upon  or- 
ders signed  by  the  mayor  and  countersigned  by  the  city  clerk,  which 
orders  shall  specify  the  purpose  for  which  they  are  drawn  out,  and 
the  fund  out  of  which  they  are  payable  and  the  name  of  the  person 
in  whose  favor  they  may  be  drawn,  and  may  be  made  payable  to  the 
order  of  such  person."  The  order  upon  which  the  city  treasurer 
paid  out  the  money  (Exhibit  5)  is  as  follows:  "Fergus  Falls,  Minn., 
Sept.  23,  1890.  Please  pay  to  C.  D.  Wright  ten  thousand  dollars 
out  of  the  permanent  fund  belonging  to  the  city  of  Fergus  Falls.  E. 
Shaver,  Acting  Mayor.  W'm.  Hocfling,  Clerk  pro  tern.  To  F.  J. 
Evans,  City  Treasurer.  $10,000."  Defendant  objected  to  the  intro- 
duction of  this  order  in  evidence  upon  the  ground  that  it  was  void  on 
its  face,  not  showing  the  purpose  for  which  the  order  was  drawn. 
The  objection  was  overruled,  and  the  order  received.  This  ruling 
is  assigned  as  error. 

Counsel  for  the  appellant  take  the  position  that  the  order  was  void 
for  the  reason  assigned,  that  it  would  afford  the  city  treasurer  no 
protection  if  he  paid  out  the  city's  money  on  such  an  order,  and  for 
that  reason  the  city  cannot  predicate  any  rights  upon  it.  Admitting 
that  the  officials  of  the  city  council  issued  a  void  order,  and  would 
be  liable  for  so  doing,  and  that  the  city  treasurer  paid  out  the  money 
without  authority,  and  that  the  order  would  not  protect  him,  this  only 
goes  to  show  that  the  money  was  obtained  from  the  city  by  an  indi- 
rect and  illegal  manner,  through  the  acts  of  its  officers.  The  main 
issue  to  be  determined  in  this  case  was  whether  the  city  had  loaned 
the  money,  and  could  call  into  action  the  powers  of  the  courts  to 
enforce  the  collection  of  the  debt.  It  is  immaterial  whether  the  money 
was  obtained  upon  an  order  void  upon  its  face  or  regular  upon  its 
face.     Neither  is  it  material  whether  the  officers  were  acting  in  good 


11)8  CONTRACTS 

faith,  as,  no  doubt,  they  were.  The  only  purpose  of  introducing  the 
order  was  to  show  that  the  money  was  paid  out  of  the  city  treasury, 
and  it  was  properly  received. 

2.  Appellant  claims  that  there  was  no  evidence  to  justify  the  find- 
ing that  the  city  ever  loaned  the  money  to  Bell,  conceding  that  he 
received  the  benefit  of  it.  The  argument  is  based  upon  two  proposi- 
tions: (1)  That,  the  order  being  void,  the  city  treasurer  had  no 
right  to  pay  it,  and  charge  the  amount  to  the  city.  The  act  being 
void,  no  money  of  the  city  passed.  (2)  That  the  money  coming  to 
the  treasurer  was  deposited  in  the  banks  in  open  account,  subject  to 
the  treasurer's  check;  that  the  city  had  no  money  on  deposit,  but 
had  parted  with  its  title  to  the  banks,  upon  the  theory  that  the  bank 
acquired  title  to  the  money  deposited  on  open  account.  This  may 
be  technically  true  as  a  result  of  the  method  of  bookkeeping;  never- 
theless, by  means  of  the  order,  and  a  check  drawn  on  the  city  funds 
in  the  bank,  $10,000  of  the  city's  money  was  drawn  out,  and  paid 
over  to  the  use  of  Bell.  This  was  the  ultimate  fact  found  by  the 
court,  and  the  evidence  is  conclusive. 

3.  Again,  it  is  urged  that  the  city,  having  no  power  to  make  the 
loan,  cannot  evoke  the  powers  of  the  courts  in  collecting  it.  The 
city  certainly  had  no  authority  to  loan  this  money.  The  act  was  not 
within  its  charter  powers ;  but  it  does  not  follow  that  the  city  can- 
not recover  it.  It  is  true  that  the  doctrine  of  ultra  vires  is,  and  ought 
to  be,  rigidly  enforced  in  favor  of  a  municipal  corporation  in  order 
to  protect  its  taxpayers  from  being  plundered  by  the  unlawful  acts  of 
its  officers.  But  when,  as  in  this  case,  a  municipal  corporation  is 
seeking  to  have  restored  to  its  treasury  money  taken  therefrom  under 
color  of  an  ultra  vires  contract,  it  does  not  lie  in  the  mouth  of  the 
beneficiary  of  the  wrongful  act,  or  of  his  assignee  with  notice,  to 
say  that  a  lien  securing  the  payment  or  return  of  the  money  is  void 
because  the  money  was  obtained  by  virtue  of  a  void  contract;  oth- 
erwise, the  wrongdoer  would  be  permitted  to  take  advantage  of  his 
own  wrong  to  the  injury  of  innocent  taxpayers.  There  can  be  no 
question  about  the  city's  power  to  collect  from  Bell  if  he  were  alive 
and  solvent,  under  the  decision  in  City  of  Chaska  v.  Hedman,  53  Minn. 
525,  55  N.  W.  Th7 ,  and  there  is  no  distinction  in  principle  between 
that  case  and  this.  That  decision  rests  upon  the  theory  that  the  con- 
tract on  the  part  of  the  city  by  which  it  paid  $500  for  the  establish- 
ment of  a  shoe  factory  was  void,  being  beyond  its  powers.  The 
corporation,  as  such,  had  no  power  to  make  it,  and  its  officers  had  no 
power  to  bind  it.  The  money  having  been  paid  without  authority, 
its  payment  was  not  a  corporate  act,  and  the  corporation  could  recover 
the  money. 

The  principle  applied  in  that  case  is  not  changed  by  the  efifect  of 
Cr.  Code,  §§  136,  369,  370.  Those  sections  apply  to  public  officers, 
but  can  have  no  application  to  the  city  as  such.  The  general  rule  that 
the  law  leaves  the  parties  to  an  illegal  transaction  where  it  finds  them 


IMPLIED  PROMISE  199 

has  no  application.  The  officers  of  the  city  are  not  the  city.  The 
city  cannot  be  bound  by  the  unlawful  acts  of  its  officers  in  paying 
out  its  money.  And,  if  the  city  may  recover  the  money  from  those 
who  received  it,  why  may  it  not  foreclose  the  mortgage,  it  being 
impossible  to  secure  the  money,  or  any  part  of  it,  in  any  other  way? 
There  is  no  difference  in  principle  between  the  two  remedies.  The  city 
is  only  recovering  what  it  can  of  the  funds  illegally  taken  from  its  treas- 
ury. The  defendant  cannot  complain.  It  bought  the  property  with  no- 
tice of  the  city's  claim  and  lien.  It  is  in  no  worse  position  than  if  the 
loan  had  been  made  by  a  private  party.  And  it  would  be  inequitable 
to  permit  it  to  benefit  by  the  illegal  act  of  the  city  officials  under  such 
circumstances.  This  right  of  a  municipal  corporation  to  enforce  its 
claims  under  such  circumstances  has  been  recognized  or  applied  in 
the  following  cases:  Deering  v.  Peterson,  75  Minn.  118,  17  N.  W. 
568;  Bank  v.  Matthews,  98  U.  S.  621,  25  L.  Ed.  188;  City  of  Buf- 
falo V.  Balcom,  134  N.  Y.  532,  32  N.  E.  7;  Hay  v.  Railroad  Co.  (C. 
C.)  20  Fed.  15.     Order  affirmed.^^ 


VII.  Implied  Promise  ^* 


VILLAGE  OF  PILLAGER  v.  HEWITT, 

(Supreme  Court  of  Minnesota,  1906.    98  Minn.  205,  107  N.  W.  815.) 
Action  by  the  village  of  Pillager,  Cass  county,  against  S.  M.  Hewitt, 
as  the   Hewitt  Bridge   Company.     Judgment    for  defendant.      From 
an  order  denying  a  new  trial,  plaintiff  appeals. 

Stakt,  C.  J.^'^  Action  to  recover  from  the  defendant  the  sum 
of  $500  and  village  bonds  to  the  amount  of  $1,300  paid  and  delivered 
by  the  plaintiff  village  to  the  defendant  upon  an  alleged  void  con- 
tract for  building  a  bridge  for  the  village  by  the  defendant.  *  "'  * 
The  principal  question  presented  by  the  record  for  our  considera- 
tion is  whether  the  conckision  of  law  of  the  trial  court  was  justified 
by  the  facts  found,  which,  briefly  slated,  are  these :  The  plaintiff'  is 
a  village  duly  organized  by  virtue  of  Gen.  Laws  1885,  p.  148,  c.  145. 
On  October  9,  1903,  the  plaintiff  and  defendant  entered  into  a  writ- 
ten contract  for  the  erection  by  the  defendant  of  a  combination 
bridge,  according  to  plans  anrl  si)ccifications  agreed  ujion,  over  the 
Crow  Wing  river.  The  defendant  built  the  bridge  in  all  respects  ac- 
cording to  the  plans  and  specifications  and  completed  it  April  1,  1904. 
Shortly  thereafter   the  village   council   inspected  the   bridge   and   ac- 

I'The  (lissrntinp  oi)inlon  of  r.inwn,  .7.,  l.s  (iiniltcd. 

!♦  For  (ll.KC'ussloii  of  principles,  see  Cooley,  Mun.  Corp.  §  80, 

IB  pjirt  of  the  opinion  i.s  omitted. 


200  CONTRACTS 

ccpted  the  same.  The  plaintiff  paid  to  the  defendant  during  the 
month  of  March.  1904,  the  sum  of  $500  in  money,  and  delivered  to 
him  its  bonds  in  the  sum  of  $1,300  pursuant  to  the  contract  for  the 
building  of  the  bridge,  but  has  refused  to  pay  the  balance  of  the  con- 
tract price  for  building  the  bridge  on  the  ground  that  the  contract 
is  void.  The  contract  was  within  the  power  of  the  plaintiff  under 
the  laws  of  this  state,  but  was  not  entered  into  in  the  manner  and 
form  provided  and  required  by  the  statutes,  but  it  was  entered  into 
privately,  and  not  upon  and  after  advertisements  for  bids,  as  is  re- 
quired by  law.  He,  however,  fully  complied  with  the  contract  and  the 
same  is  an  executed  contract  on  his  part  and  has  been  partially  exe- 
cuted by  the  plaintiff  by  the  payment  of  the  money  and  the  delivery 
of  the  bonds.  The  contract  in  question  was  entered  into  in  good 
faith,  and  the  price  to  be  paid  for  the  bridge  thereunder  was  fair  and 
reasonable;  the  profits  made  by  the  defendant  under  the  contract 
were  the  usual  profits  on  such  structures,  the  bridge  was  necessary 
for  the  village,  appropriate  to  the  place,  such  as  was  required  by 
the  physical  conditions,  and  the  village  was  justified  in  contracting 
for  and  constructing  it.  It  conclusively  appears  from  the  evidence 
that  after  the  acceptance  of  the  bridge  it  was  carried  away  by  a  flood. 
We  have,  then,  a  case  where  the  plaintiff,  a  municipal  corporation, 
was  authorized  by  law  to  enter  into  a  valid  contract  for  the  building 
of  a  bridge,  and,  in  form,  did  so  with  the  defendant,  but  by  reason  of 
its  failure  to  comply  with  the  details  required  by  the  statute  (Gen. 
Laws  1885,  p.  170,  c.  145,  §  51),  in  letting  the  contract,  it  was  void. 
It  may  be  conceded  that  the  defendant  could  not  have  maintained  an 
action  on  the  contract  to  recover  the  contract  price  for  the  bridge, 
although  he  had  fully  performed  the  contract  on  his  part;  for  upon 
the  grounds  of  sound  public  policy  the  doctrine  of  ultra  vires  is  ap- 
plied with  greater  strictness  to  municipal  than  to  private  corporations. 
This,  however,  is  an  action,  in  the  nature  of  an  action  for  money 
had  and  received,  which  is  based  upon  equitable  principles,  to  recover 
back  the  consideration  paid  by  the  plaintiff'  to  the  defendant  for 
building  a  bridge  which  was  accepted  by  it,  and  which  fully  complied 
with  the  terms  of  the  contract.  The  fact  that  the  bridge  was  after- 
wards carried  away  by  a  flood  is  not  material,  for  it  was  not  due  to  any 
fault  of  the  defendant  or  any  one  else.  After  the  acceptance  of  the 
bridge  it  became  public  property,  which  from  its  nature  could  not  be  re- 
stored to  the  defendant,  and,  of  necessity,  the  plaintiff  would  retain 
and  enjoy  the  benefits  thereof  so  long  as  it  stood.  The  defendant  in 
good  faith  received  the  money  and  bonds  in  payment  of  the  bridge 
which  he  had  built  for  the  plaintiff.  The  consideration  for  such  pay- 
ment was  full  and  fair,  and,  in  equity  and  good  conscience,  it  ought 
to  have  been  made  by  the  plaintiff.  Such  being  the  case,  it  would 
be  most  inequitable  and  unconscionable  to  compel  the  defendant  to 
return  the  money  and  bonds  paid  to  him  under  the  circumstances 
found  by  the  trial  court,  and  we  hold  that  the  plaintiff  cannot  main- 


IMPLIED   PROMISE  201 

tain  this  action  to  recover  them.  Farmer  v.  City  of  St.  Paul,  65  IMinn. 
176,  67  X.  W.  990,  33  L.  R.  A.  199;  Brown  v.  City  of  Atchison,  39 
Kan.  37,   17  Pac.  465,  7  Am.  St.  Rep.  515. 

The  case  of  Borough  of  Henderson  v.  County  of  Sibley,  28  Minn. 
515,  11   X.  W.  91,  cited  by  plaintilPs  counsel,  is  not  opposed  to  this 
conclusion,  for  in  that  case  there  was  a  total  want  of  power  on  the 
part  of  the  county  under  any  circumstances  to  enter  into  the  contract 
which    was   the   sole   consideration   for   the   payment    of    the   money 
which  the  borough  sought  by  the  action  to  recover  back.     In  this  case 
the  plaintiff  had  the  power  to  make  the  contract,  but  it  was  void,  and 
only  so, 'by  reason  of  an  irregular  exercise  of  the  power  by  the  plain- 
tiff village,  nevertheless  the  defendant  fully  performed  the  contract 
and  the  plaintiff'  voluntarily  made  the  payment  for  which  it  received 
full   consideration.     But   in   the   case  cited,  the   county   agreed   with 
the  borough  in  consideration  of  $5,000  paid  by  it  to  build  a  court- 
house, give  to  the  borough  the  right  to  use  a  portion  of  the  building 
as  a  municipal  hall,  and  if  the  county  seat  should  at  any  future  time 
be  removed  from  the  borough  the  county  should  have  the  option  of 
transferring  the  courthouse  and  the  land  upon  which  it  stood  to  the 
borough  upon  the  payment  of  $3,000,  or  of  refunding  to  the  borough 
the  $5,000  paid.     The  courthouse  was  built.     There  was,  however, 
a  total  want  of  powder  on  the  part  of  the  county  commissioners  to 
make  the  contract  and  the  borough  received  no  consideration  whatever 
for  the  payment  of  the  $5,000,  except  the  supposed  but  unenforceable 
executory  obligations  of  the  county.     The  court  held  that  the  county 
having  ai)propriated   without  rendering  a  consideration  therefor  and 
used  the  money  of  the  borough,  an  obligation  both  moral  and  legal 
rested  upon  the  county  to  make  restitution.     *     *     * 

The  assignments  of  error  are  not  sufficient  to  raise  any  questions 
as  to  the  admission  of  evidence.     Order  affirmed. 

Elliott,  J.,  took  no  part,  having  heard  the  case  in  the  district 
court. 


202  IMPllOVEMENTS 


IMPROVEMENTS 
I.  General  and  Local  Improvements  Distinguished* 


PALMER  V.  CITY  OF  DANVILLE. 

(Supreme  Court  of  Illinois,  1894.     154  111.  156,  38  N.  E.  1067.) 

Petition  by  the  city  of  Danville  for  the  confirmation  of  a  special 
tax  levied  by  authority  of  the  city  council  to  pay  the  cost  of  provid- 
ing and  putting  in  sewer  and  water  service  pipes  in  Main  street  of 
that  city.  L.  T.  Palmer  and  others  objected.  There  was  judgment 
of  confirmation,  and  the  objectors  appeal. 

Carter,  j.-  *  *  *  it  is  urged  in  the  objections,  among  other 
things,  that  the  several  water  and  sewer  service  pipes  were  intended 
for  the  use  of  the  individual  lot  owners,  and  that  the  public  could 
have  no  access  to,  use  of,  or  interest  in  them  whatever,  and  that, 
therefore,  they  did  not  constitute  a  "local  improvement,"  within  the 
meaning  of  the  law.  We  do  not  regard  this  objection  as  well  taken. 
All  of  the  several  water  and  sewer  connections  must  be  considered 
together,  as  one  entire  work,  and,  when  taken  in  connection  with  the 
use  of  the  mains  which  had  already  been  provided,  a  local  improve- 
ment especially  useful  and  beneficial  to  the  residents  on  the  contigu- 
ous property  and  generally  useful  and  beneficial  to  the  city,  was  pro- 
vided for.  At  least,  the  city  council  must  have  so  regarded  it  in 
passing  the  ordinance,  and  we  do  not  think  there  was  any  lack  or 
abuse  of  power  in  the  respect  mentioned.  Warren  v.  City  of  Chi- 
cago, 118  111.  329,  11  N.  E.  218;  Louisville  &  N.  R.  Co.  v.  City  of 
East  St.  Louis,  134  III.  659,  25  N.  E.  962;  Citv  of  Chicago  v.  Blair, 
149  111.  310,  36  N.  E.  829,  24  L.  R.  A.  412,  and  cases  cited. 

It  is  also  urged  that,  as  the  water  mains  mentioned  in  the  ordi- 
nance belonged  to  a  private  company,  the  city  had  no  control  over 
them,  except  by  virtue  of  the  police  power,  and  by  virtue  of  rights 
reserved  in  granting  the  license  to  lay  the  mains  in  the  street,  and 
that  such  reserved  rights  did  not  include  the  right  in  the  city  to  make 
water  connections  for  private  individuals,  as  a  local  improvement. 
It  was  stipulated  in  the  court  below,  between  the  parties,  that  the 
water  main  is  maintained,  under  the  ordinances  of  the  city,  for  the 
use  of  the  city  and  its  inhabitants;  and  the  question  is  presented 
whether  the  mere  fact  that  this  main  belongs  to  a  private  company, 
though  located  in  a  public   street,   and  maintained    for  the   use   of 

1  For  discussion  of  principles,  see  Cooley,  Mun.  Corp.  §  86. 

2  Part  of  the  opinion  is  oniittefl,  the  statement  of  facts  is  rewritten,  and  all 
of  the  concurring  opinion  of  Bailey,  J.,  is  omitted. 


GENERAL  AND  LOCAL  IMPROVEMENTS  DISTINGUISHED  203 

the  city  and  its  inhabitants,  under  the  provisions  of  an  ordinance 
of  the  city,  renders  the  ordinance  and  the  proceedings  under  it  in 
this  case  void.  W'e  do  not  think  it  does.  The  ordinance  under 
which  the  water  main  was  laid  and  is  maintained  was  not  given  in 
evidence,  and  we  must  presume,  in  the  absence  of  any  evidence  to 
the  contrary,  that  the  city  has  preserved  and  guarded  its  own  rights 
and  those  of  its  inhabitants  in  its  contract  with  the  water  company. 
These  water  pipe  connections  are  a  part  of  the  entire  improvement, 
and  may  be  regarded  as  important  in  making  the  sewer  and  its 
connections  more  available  and  useful  than  they  otherwise  would  be. 
In  making  this  improvement  so  that  it  would  be  most  useful  and 
beneficial  to  the  public  and  the  property  owners,  the  city  had  a  large 
discretion,  with  the  proper  exercise  of  which  the  courts  cannot  inter- 
fere.    Lightner  v.  City  of  Peoria,  150  111.  87,  Z7  N.  E.  69. 

It  may  be  conceded  that,  to  make  the  water-pipe  connections 
available  or  beneficial,  it  was  the  duty  of  the  city  council  to  provide 
water  mains  to  convey  water  to  them, — in  other  words,  to  make  pro- 
vision for  a  supply  of  water;  otherwise,  the  connections  would  be 
useless,  and  would  not  be  an  improvement  at  all,  of  benefit  to  any 
one.  Hutt  v.  City  of  Chicago,  132  111.  352,  23  N.  E.  1010.  This 
duty  the  city  has  discharged,  and  doubtless  in  the  manner  that 
seemed  best  for  itself,  the  property  owners  interested,  and  the  in- 
habitants generally ;  and  whether  it  should  lay  the  main  and  furnish 
the  water  itself,  or  hire  a  private  person  or  corporation  to  do  so,  is 
a  question  for  the  city  council  to  decide,  and  not  for  the  courts.  It 
might  be  that  if  the  contract  with  the  water  company  were  in  the 
record,  and  the  court  could  see  that  its  terms  and  provisions  were 
such  as  to  make  the  ordinance  providing  for  this  improvement  op- 
pressive and  unjust,  in  levying  this  tax  to  make  connections  with 
the  water  main  which  would  never  be  of  benefit  to  the  contiguous 
property,  this  court  would  ImM  the  ordinance  invalid;  but  the  rec- 
ord shows  nothing  more  on  this  subject  than  that  the  water  com- 
pany r)wning  the  main  maintains  it.  under  ordinances  giving  it  such 
right,  for  the  use  of  the  city  and  the  inhabitants.*     *     *     ♦ 


PAYNE  V.  VILLAGE  OF  SOUTH  SPRINGFIELD. 

(Snpremp  Court  of  Illinois,  isno.     ici    111.  L'sr..   it  X.  v..  \m,) 

Procecfling  In'  the  village  of  South  SiJiingficld  for  the  levy  of  a 
special  tax  for  the  construction  of  a  sewer.  From  a  judgment  con- 
firming the  levy  made,  Edward  W.  Payne  and  others,  property  own- 
ers, apjical. 

»  The  ,^I(l^^l(•nt  of  connnnatlon  wa.s  reversed  on  other  Kroiiiids.  See  Talmer 
V.  Cjly  of  Danville,  post,  p.  225. 


I'Ui  IMrUOVEMENTS 

Wilkin,  ].*  This  is  an  appeal  from  a  judi^ment  of  the  county 
court  of  Sangamon  county  confirming  the  levy  of  a  special  tax  by  ap- 
pellee to  paytor  constructing  sewers  in  certain  of  its  streets.    *    *    ^^ 

The  ordinance  provides  that  the  sewer  shall  be  of  vitrified  sewer 
pipe,  30  inches  in  diameter,  across  the  railroad  right  of  way;  and 
then  a  single-ring  brick  sewer,  30  inches  inside  diameter,  along  Lo- 
cust and  Sixth  streets  to  the  north  line  of  Ash  street;  from  thence 
north,  to  Myrtle  street,  vitrified  sewer  pipe  15  inches  in  diameter; 
and  thence,  to  the  northern  extremity,  12-inch  vitrified  sewer  pipe; 
from  Ash  street  across  Park  block  vitrified  sewer  pipe  20  inches  in 
diameter,  to  the  intersecting  line  of  Seventh  street  extended;  thence 
vitrified  sewer  pipe,  15  inches  in  diameter,  to  Myrtle  street  on  Sev- 
enth and  Eighth  streets ;  and  from  Myrtle  street  north,  pipe  12  inch- 
es in  diameter, — the  whole  sewer  to  have  necessary  manholes  and  in- 
lets. Section  4  provides  that  the  cost,  through  the  right  of  way  of 
the  railroad,  of  street  crossings,  and  of  work  in  and  across  Park 
block,  shall  be  paid  for  by  general  taxation.  Section  5  provides  that 
the  remainder  of  the  cost  shall  be  paid  by  special  taxation  of  lots 
and  land  fronting  or  abutting  on  the  .streets  along  which  said  sewer 
is  laid,  in  proportion  to  their  frontage.  Section  6  provides  for  ap- 
pointing a  committee  to  make  estimates,  and  section  8  for  letting  the 
contract. 

The  committee  appointed  to  make  the  estimate  of  the  cost  of  the 
work  made  a  report  to  the  village  board,  which  was  set  aside,  and 
the  matter  referred  back  to  the  same  committee  to  make  a  corrected 
estimate.  It  again  reported,  estimating  the  cost  of  the  various 
sizes  of  pipe  and  brick  work  prescribed  in  the  ordinance,  per  foot, 
and  the  whole  number  of  each  kind  which  would  be  required  to  com- 
plete the  work,  which,  with  the  cost  of  24  inlets  and  one  manhole, 
aggregated  $4,237.80,  as  the  "total  cost  of  sewer  complete."  To 
this  they  added  the  cost  of  levying,  assessing,  and  collecting,  $343.67, 
making  the  total  estimated  cost  $4,581.47,  which  they  divided:  "To- 
tal by  general  taxation,  $1,488.40;  total  amount  by  special  taxa- 
tion, $3,093.07."  This  estimate  was  duly  approved  by  the  village 
board,  and  the  village  attorney  ordered  to  file  a  petition  in  the  coun- 
ty court  for  the  levying  of  the  special  tax.  The  prayer  of  that  pe- 
tition was  granted,  and  commissioners  were  duly  appointed  to  make 
the  assessment.  To  the  assessment  roll  returned  by  these  commis- 
sioners appellants  filed  numerous  objections,  which  upon  the  hear- 
ing were  each  overruled,  and  the  assessment  confirmed,  and  objec- 
tors perfected  this  appeal.     *     *     * 

It  is  again  insisted  that  the  ordinance  is  invalid  because  of  the 
objection  that  it  provides  for  more  than  one  improvement.  The 
most  that  can  be  said  is  that  it  authorizes  the  construction  of  a  main 
sewer  with  branches.    There  is  certainly  less  reason  for  saying  this 

*  Part  of  the  opinion  is  omitted. 


GENERAL  AND  LOCAL  IMPROVEMENTS  DISTINGUISHED  205 

is  authorizing  several  improvements  than  where  an  ordinance  pro- 
vides for  paving  two  or  more  streets  as  one  improvement;  and  or- 
dinances of  this  latter  kind  were  sustained  by  this  court  in  City  of 
Springfield  v.  Green,  120  111.  269,  11  N.  E.  261;  County  of  x\dams  v. 
City  of  Quincy,  130  111.  566,  22  N.  E.  624,  6  L.  R.  A.  155,  and 
many  other  cases  therein  referred  to.     *     *     * 

The  objection  to  the  validity  of  the  ordinance  most  strongly  in- 
sisted upon  is  that  it  is  unreasonable  and  oppressive.  It  cannot  be 
denied  that  the  sewer  provided  for  in  the  ordinance  is  a  local  im- 
provement, wathin  the  meaning  of  section  1,  art.  9,  c.  24,  Rev.  St. 
It  is  admitted  that  this  court  has  frequently  sustained  special  assess- 
ments for  the  construction  of  sewers,  and  clearly  that  could  only 
have  been  done  on  the  ground  that  they  were  local  improvements. 
Being  such,  authority  to  make  them  by  special  taxation,  as  well  as 
by  special  assessment,  is  expressly  given  by  section  1,  supra.  In 
City  of  Galesburg  v.  Searles,  114 'ill.  217,  29  N.  E.  686,  it  was  ex- 
pressly held  that  an  ordinance  providing  for  the  construction  of  a 
sewer,  to  be  paid  for  one-half  by  general  tax  and  one-half  by  special 
tax,  to  be  levied  on  contiguous  property,  was  valid.  It  is  true  that 
ordinance  provided  that  the  special  tax  should  be  levied  in  propor- 
tion to  the  benefits  accruing  to  the  contiguous  property,  but  it  was 
said :  "Having  determined  to  raise  only  one-half  the  cost  of  the  im- 
provement by  special  taxation  of  contiguous  property,  it  was  open 
to  the  city  council  to  adopt  which  one  of  the  various  modes  of  spe- 
cial taxation  of  the  property  they  saw  fit, — whether  according  to 
frontage  of  the  property,  value,  benefits  received,  or  otherwise." 

That  grading  or  paving  a  street,  and  the  laying  of  sidewalks  are 
local  improvements,  to  pay  for  which  a  special  tax  may  be  levied 
upon  contiguous  property,  in  proportion  to  frontage,  has  been  the 
law  of  this  state  since  the  decision  in  White  v.  People.  94  111.  604. 
That  the  benefits  accruing  to  property  contiguous  to  a  street  in 
which  a  sewer,  like  the  one  contemplated  by  this  ordinance,  is  laid, 
differ  in  kind,  and  perhaps  in  degree,  from  those  derived  from  im- 
proving the  street  itself,  or  laying  sidewalks,  is  admitted ;  but  the 
benefits  are  certainly  no  less  local  to  the  adjacent  projierty  in  the 
one  case  than  in  tlic  other.  But  it  is  said  a  special  tax  Icvieii  on  the 
lots  of  land  lying  on  the  street  in  which  the  sewer  is  laid,  in  pro- 
portion to  frontage,  in  this  case,  operates  unjustly,  and  is  therefore 
unreasonable.  We  said,  in  White  v.  People,  supra :  "Whether  or 
not  the  special  tax  exceeds  the  actual  benefit  to  the  lot  is  not  ma- 
terial. It  may  be  supposed  to  be  based  on  a  presumed  c(iuivalcnt. 
The  city  council  have  determined  the  frontage  to  be  the  proper  meas- 
ure of  property  benefits.  That  is  generally  considered  as  a  very  rea- 
sonable measure  of  benefits  in  the  case  of  such  improvements,  and 
though  it  does  not  in  fact,  in  the  present  case,  represent  the  actual 
benefits,  it  is  enough,  that  the  city  council  have  deemed  it  the  proper 
rule  to  apply."     This  doctrine  has  been  assailed  time  and  again,  but 


206  IMPROVEMKNTS 

never  departed  from  by  this  court.  It  was  said,  in  City  of  Spring- 
field V.  Green,  120  111.  269,  11  N.  E.  261,  after  citing  numerous  de- 
cisions: "If  it  be  possible  to  settle  any  question  by  repeated  de- 
cisions, all  the  same  way,  the  present  surely  ought  to  be  regarded 
as  finally  and  irrevocably  settled."  And  in  the  late  case  of  Chicago 
&  A.  R."  Co.  V.  City  of  Joliet,  153  111.  649,  39  N.  E.  1077,  it  was  re- 
announced,  with  a  citation  of  numerous  later  decisions  to  the  same 
eflfect. 

Counsel  seem  to  understand  that  the  cases  of  City  of  Bloomington 
V.  Chicago  &  A.  R.  Co.,  134  111.  451,  26  N.  E.  366,  and  City  of 
Bloomington  v.  Latham,  142  111.  462,  32  N.  E.  506,  18  L.  R.  A.  487, 
are  to  the  contrary.  This  is  a  misconception  of  those  cases.  In  each 
of  them  the  ordinance  before  the  court  showed  upon  its  face  that 
the  property  sought  to  be  taxed  was  not  only  not  benefited  by  the 
improvement,  but  actually  damaged  thereby.  There  the  question 
was  not  whether  the  tax  exceeded  the  benefits,  but  whether  a  special 
tax  could  be  legally  levied  at  all ;  it  appearing  that  no  benefits  what- 
ever could  possibly  accrue  to  it.  Here  it  is  not  pretended  that  the 
property  of  objectors  will  not  be  benefited  by  the  sewer,  nor  is  it 
claimed  that  the  improvement  is  not  one  proper  to  be  made.  The 
sole  objection  is  that,  by  adopting  the  system  of  levying  the  special 
tax  by  frontage  instead  of  according  to  benefits  to  be  estimated  by 
commissioners,  injustice  to  property  holders  has  been  done,  and,  as 
we  have  seen,  that  question  was  not  open  to  consideration  in  the 
county  court,  nor  is  it  subject  to  review  here.  We  do  not  think 
the  position  that  the  ordinance  is  invalid,  because  it  does  not  pro- 
vide for  the  levying  of  a  special  tax  upon  the  railroad  right  of  way 
is  tenable.  The  railroad  right  of  way  is  not,  in  any  proper  sense, 
contiguous  to  the  sewer,  which  simply  passes  through  it  under- 
ground.^    *     *     * 


II.  Power  to  Make  or  Aid  * 


CITY  OF  RALEIGH  v.  PEACE. 

(Supreme  Court  of  North  Carolina,  1892.     110  N.  C.  32,  14  S.  E.  521,  17  L.  R. 

A.  330.) 

See  post,  p.  218,  for  a  report  of  the  case. 

5  The  judgment  of  confirmation  was  reversed  on  other  grounds. 
0  For  discussion  of  principles,  see  Cooley,  Muu.  Corp.  §  87. 


PEELIMINARY   PEOCEEDINQS  B07 


III.  Preliminary   Proceedings  "^ 


BUCKLEY  V.  CITY  OF  TACOAIA. 

(Supreme  Court  of  Washington,  1894.    9  Wash.  253,  37  Pac.  441.) 

Action  by  J.  M.  Buckley  and  by  Robert  Wingate  and  others  against 
the  city  of  Tacoma  and  others  to  set  aside  assessments  for  local  im- 
provements.    From  judgments  for  defendants,  plaintills  appeal. 

Stiles,  J.^  The  enabling  act  for  cities  of  the  first  class  (Gen. 
St.  §  520)  provides  that  any  such  city  framing  a  charter  for  its  own 
government  shall  have  power  (subdivision  10)  "to  provide  for  making 
local  improvements,  and  to  levy  and  collect  special  assessments  on 
property  benefited  thereby,  and  for  paying  for  the  same  or  any  por- 
tion thereof" ;  (subdivision  13)  "to  determine  what  work  shall  be  done 
or  improvements  made  at  the  expense,  in  whole  or  in  part,  of  the 
owners  of  the  adjoining,  contiguous,  or  proximate  property,  or  others 
specially  benefited  thereby,  and  to  provide  for  the  manner  of  making 
and  collecting  assessments  therefor."  Section  52  of  the  charter  of 
Tacoma  begins  thus :  "The  city  government  of  Tacoma  shall  have 
powers,  by  ordinance  and  not  otherwise,"  repeating  the  language  of 
the  statute,  with  the  exception  of  the  last  clause  of  subdivision  13. 
for  which  there  is  substituted :  "Provided  the  manner  of  making  and 
collecting  assessments  therefor  shall  be  as  prescribed  in  this  char- 
ter." But  when  the  reader  of  the  charter  gets  to  article  12,  which 
is  a  complete  code  of  street  improvement  and  assessment  law,  lie  finds 
that  not  an  ordinance,  but  a  resolution,  is  required. 

Appellants  make  a  strong  point  of  this,  and  insist  that  anything 
less  than  an  ordinance  renders  the  whole  proceedings  leading  up  to 
a  street  assessment  void.  But  the  learned  judge  who  heard  tlic  case 
below  held  that  the  specific  provisions  of  the  article  mentioned  must 
govern  the  general  ones  of  section  52,  and  we  quite  agree  with  his 
conclusion.  Although  the  enabling  act  conferred  the  i)owcr,  it  <lid 
not  undertake  to  say  how  it  should  be  exercised.  \'ery  often  such 
])Owers  are  made  effective  thrcnigh  general  ordinances,  but  here  the 
charter  f  ramers,  and  thereby  the  city  en  masse,'  have  seen  fit  to  pre- 
scribe even  a  more  solemn  and  formal  law  on  the  subject  by  provid- 
ing for  a  charter  .system  which  is  rigidly  binding  iqion  both  the  leg- 
islative and  executive  powers  of  the  corporation.  We  do  not  see 
how  any  substantial  injury  can  be  done,  either,  through  this  construc- 
tion, and  it  remains  merely  to  examine  the  record,  to  sec  how  the 
mandates  of  the  charter  have  been  carried  out. 

7  For  (lisf'usslnn  of  iiriiifllilcs,  sec  ('(inlcy,  Miiii.   f'urp.  8  SS. 
**  I'art  of  the  opinion  Is  oMiittcd. 


208  IMPROVEMENTS 

The  charter  provides  for  the  establishment  of  a  board  of  public 
works,  with  a  clerk,  and  specifically  delegates  to  it  many  executive 
duties,  and  the  appointment  of  sundry  officers,  among  whom  is  a 
city  engineer,  who  is  required  to  make  all  necessary  surveys  of  public 
w^ork  under  the  direction  of  the  board.  Article  12,  so  far  as  is  nec- 
essary for  the  consideration  of  this  case,  reads  as  follows : 

"Sec.  135.  All  applications  for  establishing  or  changing  the  grade 
of  any  street  or  streets,  the  improvement  of  public  grounds  or  build- 
ings, the  laying  out,  establishing,  vacating,  closing,  straig*htening, 
widening  or  improvement  of  any  street,  road  or  highway,  or  the  lay- 
ing out  or  opening  of  any  new  street  through  public  or  private  prop- 
erty, and  for  all  public  improvements  which  involve  the  necessity  of 
taking  private  property  for  public  use,  or  where  any  part  of  the  cost 
or  expense  thereof  is  to  be  assessed  upon  private  property,  shall  be 
made  to  said  board,  and  such  work  or  improvement,  shall  not  be 
ordered  or  authorized  until  after  said  board  shall  have  reported  to 
the  city  council  upon  said  application.  But  before  any  work  or  im- 
provements as  above  contemplated  shall  be  commenced,  the  city  coun- 
cil, when  recommended  by  the  board  of  public  works  shall  pass  a 
resolution  ordering  that  said  work  be  done ;  provided  that  all  ap- 
plications for  the  purpose  of  changing  the  grade,  or  of  making  any 
improvements  upon  any  street,  avenue  or  alley,  within  the  city  shall 
be  signed  by  at  least  three  resident  freeholders,  owners  of  property 
abutting  upon  said  street,  avenue  or  alley;  provided,  however,  that 
the  city  council  may  without  petition  or  recommendation  have  power 
to  order  the  improvement  of  any  street,  avenue  or  alley,  or  any 
part  thereof  by  a  two-third  vote  of  all  members  of  the  city  council. 

"Sec.  136.  Upon  the  adoption  or  passage  of  any  resolution  by  the 
city  council  for  the  improvement  of  any  street,  avenue  or  alley,  the 
board  of  public  works  shall  cause  a  survey,  diagram  and  estimate  of 
the  entire  cost  thereof,  to  be  made  by  the  city  engineer;  said  diagram 
and  estimate  shall  be  filed  in  the  office  of  the  board  of  public  works 
for  the  inspection  of  all  parties  interested  therein.  The  clerk  of  said 
board  shall  forthwith  cause  a  notice  of  such  filing  to  be  published  daily 
for  ten  days  in  the  official  newspaper ;  such  notice  shall  contain  a 
copy  of  the  said  resolution  passed  by  the  city  council,  and  must  spec- 
ify the  street,  highway,  avenue  or  alley,  or  part  thereof,  proposed  to 
be  improved,  and  the  kind  of  improvement  proposed  to  be  made, 
together  with  the  estimated  cost  and  expense  thereof,  and  also  a  gen- 
eral description  sufficient  for  identification  of  the  property  to  be 
charged  with  the  expenses  of  making  such  improvements.     *     *     *  " 

Without  petition,  the  council  passed  this  resolution,  by  unanimous 
vote :  "Resolved  by  the  city  council  of  the  city  of  Tacoma,  that  said 
city  council  hereby  declares  its  intention  to  improve  N  street,  in  Buck- 
ley's addition,  from  Steele  street  to  Pine  street,  at  the  expense  of 
the  abutting  owners.  Grading  and  sidewalking.  To  be  done  by  day 
labor."    The  board  of  public  works,  in  due  course,  published  a  notice 


PRELIMINARY   PROCEEDINGS  209 

as  follows :  "Notice  is  hereby  given  that  the  following  is  a  true  copy 
of  a  resolution  of  intention  passed  by  the  city  council  February  27, 
1892,  to  wit :  'Resolved,  by  the  city  council  of  the  city  of  Tacoma.  that 
said  city  council  hereby  declares  its  intention  to  improve  N  street,  in 
Buckley's  addition,  from  Steele  street  to  Pine  street,  at  the  expense 
of  the  owners  of  the  lots  and  parcels  of  land  affected  by  said  im- 
provement, according  to  the  city  charter;  said  improvement  to  con- 
sist of  grading  to  an  established  grade,  and  building  sidewalks  on 
both  sides  thereof.  And  the  city  engineer  is  hereby  ordered  to  make 
a  survey,  diagram,  and  estimate  of  the  said  improvement,  and  file 
the  same  in  the  office  of  the  board  of  public  works.'  That  the  sur- 
vey, diagram,  and  estimate  of  the  cost  of  said  improvement  were 
filed  in  the  office  of  the  board  of  public  works  March  7,  1892,  by 
the  city  engineer,  and  the  estimated  cost  thereof  is  $1,850." 

The  filing  of  a  diagram  and  estimate  consisted  in  the  engineer's 
writing  in  an  estimate  book  kept  in  the  office  of  the  board  the  fol- 
lowing : 

N  Street  in  Buckley's  Addition. 


Steele  to  Prospect 

cut       78 

fill  1.055 

curb 

SIO 

Prospect  to  White 

539 

157 

** 

270 

White  to  Oak 

"     1,453 

Oak  to  Race 

575 

46 

<( 

29 

Race  to  B'd'y 

92 

317 

ti 

200 

Totals  2,737.  1,575  1,309 

2,136  lineal  feet  of  7  walk. 

80  "          "  "       "       aprons. 

344  "          "  6       "       Xings. 

2,136  "          "  putter.s. 

424  "          "  drain  box. 
1.800  feet  frontape. 
Estimate  March  7,  1892,  $1,850. 

No  remonstrance  of  the  owners  of  half  or  more  of  the  lots  to 
be  assessed  for  the  improvement  was  filed,  and  the  board,  without 
further  order  from  the  council,  proceeded  to  make  the  improvement, 
completing  it  June  4.  1892,  at  a  cost  of  $1,885.94.     *     *     ♦ 

Four  things  plainly  appear  from  the  record  thus  set  out,  viz.:  (1) 
No  resolution  was  passed  ordering  any  improvement  made  on  N 
street.  (2)  The  engineer  did  not  file  a  diagram  in  the  oflicc  of  the 
board.  (3)  Neither  the  board  nor  its  clerk  published  a  notice  con- 
taining a  copy  of  the  resolution  that  was  passed.  (4)  The  notice  con- 
tained no  description  of  the  property  to  be  charged.  lUit  the  re- 
spondents' position  is  that  this  does  not  matter,  as  something  was 
done  which  was,  in  each  particular,  intended  to  comply  with  the 
mandatory  provisions  of  the  charter.  The  question  is.  when  <lid  the 
city  obtain  jurisdiction  to  make  this  improvement  and  charge  a!)Utting 
property  with  the  expense?  Obviously,  so  far  as  these  cases  go. 
it  was  when  such  proceedings  had  been  taken  by  the  city  as  that  the 
CooLEY  Cases  Mln.C. — 14 


210  IMmOVEMENTS 

owners  of  the  property  to  be  charged  had  had  the  notice  prescribed  by 
the  charter,  and  were  bound  to  remonstrate  or  be  estopped.  To  bring 
matters  to  such  a  point  in  a  case  where  the  proceeding  is  without  peti- 
tion, the  council  must  have  ordered  the  improvement,  the  engineer 
must  have  filed  a  diagram  and  estimate,  and  the  clerk  of  the  board 
must  have  published  the  notice. 

1.  The  Resolution.  The  initiative  step  is  the  resolution  which  or- 
ders the  improvement  to  be  made.  No  such  order  can  be  intelligible 
which  does  not  reasonably  describe  the  kind  of  improvement  intended, 
not,  as  counsel  for  respondents  suggests  would  follow,  with  such 
particularity  as  would  be  necessary  in  the  making  of  a  contract  for 
the  work,  but  with  such  fullness  of  description  as  would  enable  an 
engineer  who  had  no  previous  familiarity  with  the  matter  to  make 
his  diagram  and  estimate  after  survey  of  the  street.  Allowing  that 
ihe  verbless  phrase  used  in  the  resolution  before  us  means  that  it 
is  the  intention  of  the  council  to  improve  the  street  by  grading  it  and 
constructing  side  walking,  the  query  at  once  suggests  itself,  what  is 
to  be  the  extent  of  the  grade,  and  what  kind  of  sidewalk  is  proposed? 
There  may  or  may  not  have  been  an  established  grade  on  N  street, 
and,  if  there  were  such  a  grade,  it  may  or  may  not  have  been  the 
intention  to  conform  to  it  in  making  this  improvement.  There  is 
an  infinite  variety  of  sidewalks, — wood,  iron,  stone,  brick,  concrete, 
— of  more  forms  than  there  are  materials,  some  cheap  and  some 
expensive,  but  all  sidewalks.  How  could  the  engineer  make  an  esti- 
mate of  the  cost,  or  the  board  construct  the  work,  without  substantial 
directions  in  these  particulars  ?  The  answer  comes  promptly  with  the 
suggestion :  Either  they  could  not  proceed  at  all,  or  they  must  pro- 
ceed according  to  their  own  ideas.  In  this  instance  they  took  the 
latter  course,  but  without  any  authority,  since  it  lies  with  the  council 
alone  to  prescribe  the  method  of  making  all  such  improvements. 

Something  is  suggested  in  argument  as  to  there  being  general 
ordinances  of  the  city  governing  the.  improvement  of  streets,  which 
served  as  a  guide  to  the  engineer  and  board  of  public  works.  There 
is  nothing  of  this  in  the  record,  and,  if  there  were  such  ordinances, 
they  should  have  been  referred  to  in  the  resolution  in  such  a  way 
as  that  parties  interested  would  know  where  to  look  for  a  descrip- 
tion of  the  kind  of  improvement  intended.  Streets  are  not,  and  usu- 
ally cannot  be,  made  after  one  pattern,  like  the  interchangeable  parts 
of  a  machine.  One  way  of  making  an  improvement  may  be  sub- 
stantially as  good  as  another,  and  may  serve  the  purpose  just  as 
well,  although  the  difference  in  cost  may  mean  an  easy  payment  by 
the  owner  in  one  case  and  substantial  ruin  in  another.  It  is  not  to 
be  supposed  that  the  council  would  overlook  such  considerations,  but 
that  it  would  endeavor,  while  prosecuting  a  reasonable  improvement, 
to  lighten  the  burden  of  expense  as  much  as  possible  in  each  partic- 
ular case,  without  regard  to  any  fixed,  inflexible  rule  of  procedure. 
To  accomplish  this  it  must  know  the  circumstances  surrounding  the 


PEELIMINAEY   PROCEEDINGS  211 

proposed  work,  and  with  this  knowledge  it  can  easily  prescribe  the 
general  features  of  the  improvement.  To  do  otherwise  is  to  cut  oft" 
from  property  owners  all  knowledge  of  what  they  will  be  expected 
to  answer  for,  and  to  deprive  them  of  the  opportunity  to  remonstrate 
in  sufficient  numbers  if  they  see  fit.  But  the  worst  of  such  a  loose 
system  is  that  it  leaves  to  mere  executive  officers  the  exercise  of  a 
large  discretion  which  the  charter  does  not  confer  upon  them.  In 
other  cases,  which  are  also  before  us,  the  evil  of  such  a  system  ap- 
pears clearly  exemplified.  But  perhaps  the  greatest  defect  of  this 
resolution  is  that,  while  it  declares  the  intention  of  the  council  to 
improve  N  street,  it  does  not  order  anything,  and  furnishes  no  basis 
for  any  action  on  the  part  of  the  engineer  and  board  of  public  works. 

Counsel  for  the  respondents  endeavor  to  excuse  the  method  of  pro- 
cedure by  resolution  of  intention  by  saying  that  the  council  had  merely 
followed  a  habit  acquired  under  the  charter  of  1886  (section  144). 
But  under  that  charter  the  council  itself  controlled  the  work.  The 
determination  of  the  character  of  the  work  was  equally  necessary,  and 
no  such  work  could  be  done  at  all  at  the  expense  of  the  property 
except  upon  petition  of  the  resident  owners  of  more  than  one-half 
of  it.  But,  be  that  as  it  may,  the  present  charter  had  been  in  opera- 
tion a  year  and  a  half  when  these  proceedings  commenced,  and  the 
"habit,"  under  the  old  charter,  cannot  be  accepted  as  an  amendment 
to  the  new  one.  The  resolution  of  intention  should  have  defined  the 
improvement  intended,  and  directed  the  board  of  public  works  to 
proceed  with  its  execution  as  defined,  after  notice,  and  ui)on  the 
failure  of  property  owners  to  present  a  sufficient  remonstrance. 

2.  The  Diagram  and  Estimate.  The  charter  prescribes  that  a  dia- 
gram and  estimate  shall  be  filed  after  a  survey  by  the  engineer.  So 
far  as  the  property  owner  is  concerned  with  the  estimate,  the  gross 
estimate  of  the  cost  and  the  total  amount  of  frontage  would  seem 
to  be  about  all  he  is  interested  in,  since  the  charter  method  of  ])ay- 
ment  is  according  to  the  front  foot,  and  he  can  be  charged  for  notliing 
in  excess  of  the  estimate.  These  two  items,  therefore,  would  enable 
him  to  calculate  his  probable  expense.  But  the  diagram,  if  it  serves 
any  purpose  at  all  to  the  owner,  must  be  intended  to  sIkjw  him  how 
the  improvement,  when  completed,  will  proljably  affect  his  properly, 
so  that  he  can  intelligently  determine  whether  he  will  remonstrate 
or  not.  It  may  be  of  the  very  highest  importance  lo  him  to  know 
whether  he  is  to  be  left  on  the  brink  of  a  cliff  or  at  the  foot  of  a 
trestle;  whether  the  assessment  he  will  be  called  ujjon  to  pay  will  be 
his  total  expense,  or  whether  this  will  be  but  the.  beginning  of  a  large 
outlay  necessary  to  protect  his  front  or  restore  it  lo  a  safe,  convenicnl, 
and  decent  condition.  Perhai)s,  in  the  case  of  a  new  and  uninhabiled 
street,  these  would  not  be  very  imi)ortant  mailers  practically,  but  it 
is  to  be  remembered  that  this  charter  prescribes  a  universal  rule  f<'r 
all  cases  of  street  changes  and  improvements,  and  that  the  prece<lent 
laid  down  as  a  rule  for  a  lot-booming  street  out  in  the  woods  makes 


212  IMPROVEMENTS 

the  same  rule  that  will  be  applied  should  the  grade  of  the  most  im- 
portant street  in  the  city  be  raised  or  lowered.  There  was  no  attempt 
to  comply  with  the  charter  in  the  matter  of  a  diagram  in  this  instance, 
and  therefore  one  of  the  purposes  of  giving  a  notice  was  rendered 
futile. 

3.  The  Notice.  By  the  notice  published  the  owners  of  property 
abutting  upon  N  street  from  Steele  to  Pine  were  given  to  suppose 
that  the  council  had  passed  a  resolution  which  was  never  before  that 
body.  The  framer  of  the  notice  appears  to  have  been  apprehensive 
that  the  resolution  as  passed  was  defective  in  some  particulars  and 
therefore  he  changed  it  and  added  to  it  matter  enough  to  more  than 
double  its  actual  length.  The  publication  of  a  copy  of  the  resolution 
in  the  notice  is  intended  to  bring  home  to  the  property  owner  infor- 
mation that  the  council  has  acted  in  a  matter  of  interest  to  him  and 
to  let  him  know  precisely  what  it  has  done  and  proposes  to  do.  This 
copy  to  be  published  means  a  literal  copy  according  to  the  usual  way 
in  which  the  word  is  used  and  not  the  construction  which  the  clerk 
of  the  board  of  public  works  may  put  upon  the  meaning  of  the  res- 
olution. However,  in  justice  to  the  clerk  in  this  instance,  it  ought, 
perhaps,  to  be  said  that  he  had  nothing  whatever  to  do  with  the  pub- 
lication, which  was  made  by  the  individual  members  of  the  board, 
thus  adding  one  more  item  to  the  list  of  charter  infractions.  The 
notice  is  by  the  charter  required  to  specify  the  kind  of  improvement 
proposed  to  be  made,  and  to  contain  a  general  description  sufficient 
for  identification  of  the  property  to  be  charged.  The  first  of  these  re- 
quirements would  be  met  by  the  copy  of  the  resolution  if  that  docu- 
ment contained  any  sufficient  specification;  the  second  gives  rise  to 
further  consideration.  The  resolution  in  this  case  declares  the  inten- 
tion to  be  to  improve  "at  the  expense  of  the  abutting  owners."  The 
notice  improves  upon  the  original  by  the  phrase,  "at  the  expense 
of  the  owners  of  the  lots  and  parcels  of  land  afi:ected  by  said  improve- 
ment, according  to  the  city  charter."  Neither  is  a  correct  statement, 
critically  considered,  for  the  expense  is  not  charged  upon  the  owners, 
but  is  assessed  to  land  without  regard  to  ownership,  but  this  is  a  mat- 
ter  of   small   consequence. 

The  respondents'  reply  is  that  section  138  of  the  charter  makes  it 
obligatory  upon  the  city  to  levy  the  assessment  in  a  certain  way,  each 
hneal  foot  of  frontage  along  the  line  of  the  improvement  paying  its 
proportion  of  the  total  cost;  so  that  every  person  owning  property 
along  a  street,  knowing  the  law,  must  know  that,  when  that  street 
is  to  be  improved,  his  property  will  necessarily  be  included  in  the 
assessment.  The  argument  is  well  enough  as  far  as  it  goes.  But 
what  is  it  worth  in  the  face  of  the  charter  direction?  According  to 
this  theory,  when  the  charter  required  the  notice  to  specify  the  street, 
or  part  thereof,  proposed  to  be  improved,  it  should  have  stopped,  be- 
cause the  owner  could  well  enough  reason  out  the  necessary  conclu- 
sion as  to  the  liability  of  his  property.     It  went  on,  however,  and 


PKELIMINARY   PE0CEEDING8  213 

specifically  required  the  property  to  be  charged  to  be  described  in 
a  way  sufficient  for  identification ;  and,  more  than  this,  the  very  first 
clause  of  section  138  is  in  these  words:  "Such  cost  and  expenses 
of  making  said  improvement  shall  be  assessed  upon  the  adjoining, 
contiguous  or  proximate  lots  or  parcels  of  land  described  in  said  no- 
tice, in  the  following  manner;"  thus  emphasizing  what  seems  to  us 
to  have  been  the  clear  intention,  viz.  that  each  owner  should  have 
laid  under  his  eyes  specific  information  that  his  property  was  to  be 
assessed,  without  any  resort  on  his  part  to  argument  or  conclusion. 

And  this  case  furnishes  an  excellent  illustration  of  the  value  of 
such  a  requirement,  for  where  lots  lie  endwise  to  a  street  they  are  to 
be  assessed  their  full  share  of  the  cost  according  to  frontage,  but 
where  they  lie  lengthwise  half  of  the  cost  is  to  be  assessed  to  the 
first  lot,  and  the  other  half  to  other  lots  in  the  rear  to  the  center  of 
the  block.  Now,  it  happens  that  N  street  runs  through  blocks  in  all 
of  which  the  lots  lie  lengthwise  along  it,  and  there  are  sixteen  lots  in 
each  tier,  so  that  one  lot  must  pay  half  the  expense  assessed  on  a 
hundred  feet  frontage,  and  seven  lots  pay  the  other  half.  Could  the 
holder  of  a  deed  to  lot  27  in  block  7,  which  is  the  sixth  lot  from  the 
street,  without  a  familiarity  with  the  lot  and  block  system  of  Buck- 
ley's addition,  which  is  not  to  be  presumed,  know  whetlier  his  lot 
would  be  within  the  assessment  district,  unless  he  hunted  up  a  plat? 
Had  he  not,  under  the  express  language  of  the  charter,  a  right  to 
expect  to  see,  in  a  notice  of  the  improvement  of  N  street,  his  lot 
specifically  named,  or  at  least  "lots  25  to  32,  inclusive,  in  block  7." 
which  would  have  been  a  sufficient  description  in  this  instance,  even 
for  a  deed?  If  he  did  not,  then  of  what  use  is  the  minute  particu- 
larity of  this  charter  in  the  matter  of  street  improvements? 

If  the  city's  officials  can  override  these  plain,  mandatory  provisions 
in  the  many  particulars  already  pointed  out,  and  improve  streets 
ad  libitum,  and  the  property  owner  be  bound  on  theories  of  substantial 
compliance,  estoppel,  waiver,  benefits,  or  failure  to  tender  fair  value, 
we  fail  to  see  any  sensible  reason  for  such  provisions  in  a  charter. 
But  the  people  who  pay  for  streets  made  the  charter,  and,  while  they 
granted  to  the  public  authorities  most  liberal  powers,  by  pcrmitling 
the  arbitrary  improvement  of  streets  at  local  cxpcn.se,  they  emphati- 
cally rescrvcrl  to  themselves  the  right  to  have  three  things  (ii.stinclly 
brought  to  their  knowledge,  viz.:  (1)  What  improvement  it  is  pro- 
posed to  make;  (2)  what  the  cost  is  to  be;  (3)  what  property  is 
to  be  charged  with  the  expense.  This  knowledge  they  declared  must 
be  afforded  in  a  certain  way,  and  after  that  they  reserved  the  right 
to  remonstrate,  and  to  have  a  two-thirds  vote  of  the  council  to  over- 
come their  objections.  It  is  unnecessary  to  cite  authorities  on  these 
points.  The  A,  B,  C  of  the  laws  of  municipal  corporations,  that  the 
power  to  levy  special  asses.sments  is  to  be  construed  strictly,  that 
the  mode  prescribed  is  the  measure  of  power,  and  that  material  re- 
quirements must  be  complied  with  before  there  is  any  liability,  is  all  that 


214  IMPROVEMENTS 

need  be  quoted.  Spokane  Falls  v.  Browne,  3  Wash.  84,  27  Pac.  1077. 
An  assessment  made  contrary  to  these  principles  is  void,  and  injunction 
lies  to  restrain  its  collection.  Dill.  Mun.  Corp.  §§  803,  804;  Hill, 
Inj.  §  539.     *     *     *     Reversed. 


GRAY  V.  BURR. 
(Suprenae  Court  of  California,  1902.    138  Cal.  109,  70  Pac.  10G8.) 

Harrison,  J.  Action  upon  a  street  assessment  in  the  city  and 
county  of  San  Francisco.  Judgment  was  rendered  in  favor  of  the 
defendants,  and  from  this  judgment,  and  an  order  denying  a  new 
trial,  the  plaintiffs  have  appealed. 

The  work  for  which  the  assessment  was  made  is  "laying  granite 
curbs  and  artificial  stone  sidewalks  on  Union  street  between  Franklin 
and  Gough  streets,  where  not  already  laid,  and  except  where  bitumi- 
nous rock  sidewalks  are  laid."  The  resolution  ordering  the  same  was 
passed  September  28,  1896,  and  the  assessment  sued  upon  was  issued 
February  18,  1897.  The  complaint  does  not  set  forth  the  resolution 
of  intention  for  doing  the  above  work,  or  the  date  of  its  passage ;  but 
at  the  trial  the  defendants,  under  certain  averments  in  their  answer, 
introduced  in  evidence  a  resolution  passed  by  the  board  of  supervisors 
July  20,  1896,  declaring  its  intention  to  order  "that  granite  curbs  be 
laid  on  Union  street,  between  Franklin  and  Gough  streets,  where  not 
already  laid,  and  that  the  roadway  thereof  be  paved  with  bituminous 
rock,  except  that  portion  required  by  law  to  be  kept  in  order  by  the 
railroad  company  having  tracks  thereon."  It  was  also  shown  that 
on  August  10th  the  owners  of  a  miajority  of  the  frontage  upon  that 
block  filed  a  protest  against  the  above  work,  upon  which  was  indorsed, 
under  date  of  September  23,  1896:  "Majority  protest,  which  under 
the  law  stops  further  proceedings  for  six  months."  The  above  resolu- 
tion of  intention  does  not  include  the  work  of  "artificial  stone  side- 
walks," and  the  paving  of  the  roadway,  which  is  included  therein,  is 
not  covered  by  the  assessment  herein;  and,  as  above  stated,  the  time 
at  which  a  resolution  of  intention  for  laying  the  artificial  sidewalks 
was  passed  by  the  board  does  not  appear  in  the  record. 

It  is  contended  by  the  appellants  that  under  the  statute  a  protest 
against  the  improvements  by  the  owners  of  a  majority  of  the  frontage 
does  not  have  the  effect  to  oust  the  board  of  jurisdiction  to  order  the 
work  unless  the  improvement  is  "for  one  block  or  more,"  and  as  the 
above  resolution  of  intention  calls  for  laying  curbs  "where  not  already 
laid,"  and,  as  it  appears  from  the  assessment  that  curbs  had  been  laid 
on  a  large  portion  of  the  block,  the  improvement  herein  was  for  less 
than  one  block,  and  the  above  protest  did  not,  therefore,  have  the 
effect  to  deprive  the  board  of  jurisdiction  to  order  the  work.  The  stat- 
ute, however,  in  a  subsequent  portion  of  the  section,  declares :  "When 
the  work  or  improvement  proposed  to  be  done  is  the  construction  of 


PRELIMINARY   PROCEEDINGS  215 

sewers,  manholes,  culverts  or  cesspools,  cross-walks,  or  sidewalks  and 
curbs,  and  the  objection  thereto  is  signed  by  the  owners  of  a  majority 
of  the  frontage  liable  to  be  assessed  for  the  expense  of  said  work  as 
aforesaid,  the  said  city  council  shall  at  its  next  meeting  fix  a  time  for 
hearing  said  objections,  not  less  than  one  week  thereafter.  The  city 
clerk  shall  thereupon  notify  the  persons  making  such  objections,  by 
depositing  a  notice  thereof  in  the  postoffice  of  said  city,  postage  pre- 
paid, addressed  to  each  objector,  or  his  agent,  when  he  appears  for 
such  objector.  At  the  time  specified  said  city  council  shall  hear  the 
objections  urged  and  pass  upon  the  same,  and  its  decision  shall  be  final 
and  conclusive,  and  said  bar  for  six  months  to  any  further  proceedings 
shall  not  be  applicable  thereto." 

Under  this  provision  the  council  is  not  authorized  to  order  such  im- 
provement when  objections  thereto  are  filed  by  the  owners  of  a 
majority  of  the  frontage  "liable  to  be  assessed  for  the  expense  of  said 
work"  until  after  it  has  heard  and  passed  upon  the  objections  at  a 
time  fixed  by  it,  upon  notice  therefor  given  as  directed  by  the  statute. 
The  jurisdiction  of  the  board  was  not  afifected  by  the  erroneous  con- 
struction which  it  gave  to  the  statute  in  reference  to  the  objections; 
but,  while  the  filing  of  the  objections  did  not  have  the  eflfect  of  an  ab- 
solute veto  upon  its  jurisdiction  to  order  the  work,  it  suspended  the 
exercise  of  that  jurisdiction  until  the  objections  of  the  protestants  had 
been  passed  upon,  and  as  the  resolution  ordering  the  work  was  passed 
without  giving  to  the  owners  any  opportunity  to  be  heard,  and  at  a 
time  when  the  board  was  without  authority  to  pass  it,  the  subscciucnt 
proceedings  were  unauthorized,  and  the  assessment  created  no  lien. 
The  right  to  protest  against  laying  granite  curbs  was  not  impaired  by 
the  fact  that  the  above  resolution  of  intention  did  not  also  include  the 
sidewalks.  The  board  could  not,  by  providing  for  the  work  of  side- 
walks and  curbs  in  separate  resolutions  of  intention,  deprive  tlic  own- 
ers of  the  right  of  protest  against  either  of  the  items.  Los  Angeles 
Lighting  Co.  v.  City  of  Los  Angeles,  106  Cal.  156,  39  Pac.  53.S.  And 
as  the  assessment  sued  upon  includes  the  cost  of  the  curbs  with  thai 
of  the  sidewalks,  no  lien  is  created  thereby,  even  if  it  be  shown  that 
the  proceedings  for  laying  the  artificial  .stone  sidewalks  were  wilhoul 
objection.    Ryan  v.  Altschul,  103  Cal.  174,  Z7  Pac.  339. 

The  judgment  and  order  are  affirmed. 


216  IMPROVEMENTS 


IV.  Special  Assessments  • 


STATE  (RAYMOND'S  ESTATE  et  al.,  Prosecutors)  v.  BOROUGH 

OF  RUTHERFORD. 

(Supreme  Court  of  New  Jersey,  1893.    55  N.  J.  Law,  441,  27  Atl.  172.) 

Certiorari  by  the  state,  at  the  prosecution  of  the  estate  of  Aaron 
Raymond  and  others,  against  the  mayor  and  common  council  of  the 
borough  of  Rutherford,  to  review  the  final  assessment  of  grading 
Union  avenue  from  Erie  avenue  to  the  Passaic  river,  in  the  borough 
of  Rutherford.     Assessment  sustained. 

LiPPiNcoTT,  J.^*'  This  certiorari  brings  up  for  review  the  final 
assessment  for  grading  Union  avenue  from  Erie  avenue  to  the  Pas- 
saic river,  in  the  borough  of  Rutherford.  The  whole  length  of  the 
improvements  was  13,409.96  feet.  There  are  two  plots  assessed  to 
the  prosecutors.  The  plot  on  the  northwesterly  side  of  the  avenue  has 
a  frontage  thereon  of  2,065.06  feet,  and  is  designated  as  "Plot  No.  47" 
on  the  assessment  map,  and  is  assessed  for  the  sum  of  $1,497.16.  The 
plot  on  the  southeasterly  side  of  the  avenue  has  a  frontage  thereon 
of  2,062.50  feet,  and  is  designated  as  "Plot  No.  81"  on  the  assessment 
map,  and  is  assessed  for  the  sum  of  $1,495.31.  The  total  cost  and 
expense  of  the  improvement  amounted  to  the  sum  of  $9,706.43.  The 
whole  of  the  amount,  with  the  exception  of  $183.44,  was  assessed,  as 
benefits  received,  upon  the  owners  of  lands  claimed  to  have  been  ben- 
efited. This  sum  of  $183.44  was  by  the  commissioners  of  assessments 
adjudged  to  be  an  excess  of  benefits,  and  was  placed  upon  the  borough 
at  large.  The  reasons  for  setting  aside  the  assessment  will  be  taken 
up  in  the  order  in  which  they  were  discussed  in  the  argument.    *    *    * 

The  seventh  objection  is  that  the  commissioners  admitted  that  they 
favored  making  every  street  pay  for  its  own  improvements, — that  is, 
pay  for  itself,  without  regard  to  benefits, — and  that,  therefore,  they 
are  not  disinterested  commissioners.  It  appears  from  the  evidence  of 
Mr.  Ely,  a  witness  in  the  case,  that  after  the  making  and  filing  of  the 
report  of  assessments,  and  upon  the  hearing  of  objections,  at  the  time 
appointed  for  such  hearing,  in  the  discussion  which  ensued,  the  chair- 
man of  the  commissioners  said  to  him  that  it  was  the  policy  of  the 
borough  to  assess  the  cost  of  the  improvement  of  the  streets  upon  the 
streets  so  improved,  and  they  calculated  to  make  each  street  pay  for  its 
own  improvement,  and  that  at  this  time  there  was  no  dissent  expressed 
by  the  other  commissioners.  It  does  not  appear  that  their  attention 
was  again  called  to  the  matter,  in  connection  with  this  street  improve- 

9  For  discussion  of  principles,  see  Cooley,  Mun,  Corp.  §  91. 

10  Part  of  the  opinion  is  omitted. 


ePECIAL   ASSESSMENTS  217 

ment,  or  that  it  was  anything  more  than  a  casual  remark,  and  it  is  not 
such  an  expression  as  would  warrant  a  legal  conclusion  that  the  com- 
missioners were  not  disinterested.  It  might  well  be  found,  upon  ex- 
amination of  all  the  circumstances,  that  the  policy  of  making  each 
street  in  the  borough  of  Rutherford  pay  for  its  own  improvement 
might  not  be  discordant  to  the  application,  practically,  of  the  principle 
that  for  such  improvements  lands  should  be  assessed  only  in  propor- 
tion to  benefits  received.     *     *     * 

The  fifth  reason  urged  for  nullifying  this  assessment  against  the 
prosecutors  is  that  the  whole  assessment,  including  that  made  upon 
the  lands  of  the  prosecutors,  is  made  upon  the  frontage  of  lands  front- 
ing on  said  avenue,  without  regard  to  the  size,  value,  or  depth  of  the 
lots  assessed.  This  contention  is  not  sustained  by  the  evidence.  The 
report  of  the  commissioners  is  "that  we,  and  each  of  us,  have  per- 
sonally and  thoroughly  examined  the  said  Union  avenue  and  adjacent 
property,  and  lands  specially  benefited  by  said  grading;  that  we  have 
justly,  fairly,  and  equitably  assessed  the  aforesaid  cost  and  expense 
upon  the  lands  and  real  estate  specially  benefited  by  such  improvement 
to  the  extent  and  not  beyond  such  benefit ;  and  that  in  making  such 
assessment  we  have,  in  each  and  every  case,  had  due  regard  and  con- 
sideration to  the  benefits  received  by  such  lot  and  parcel  of  land  from 
such  improvement,  over  and  above  all  damages  sustained  by  each  of 
said  lots  or  parcels  of  land,  and  that  in  no  case  have  we  assessed 
any  lot  or  parcel  of  land  more  than  the  amount  of  such  benefit." 
This  is  the  standard  of  assessment  provided  for  by  the  borough 
laws  governing  this  subject-matter.    Laws  1887,  p.  126,  §  4. 

I  find  no  evidence  assailing  the  area  of  the  assessment,  whatever 
may  be  said  of  the  benefits  accruing  within  it.  The  judgment  of 
the  commissioners  was  that  the  special  benefits  in  this  case  were 
clearly  limited  to  the  frontage.  It  will  be  found  tliat  the  rate  of  the 
various  assessments  is  not  always  the  same.  In  most  instances  it 
will  be  found  that  the  conditions  were  merely  identical,  and  there 
was  but  little  reason  for  any  difference.  F>ut  the  judgment  of  the 
commissioners  is  that  the  benefits  laid  by  them  were  special  bene- 
fits, laid  according  to  benefits  bestowed,  and  not  in  excess  thereof. 
There  is  no  evidence  that  in  laying  tin-  benelits,  so  far  as  there  were 
benefits,  upon  the  frontage,  the  commissioners  did  not  conform  to 
the  principle  of  peculiar  benefits.  The  princii)Ie  of  frontage  assess- 
ment is  not  necessarily  wrong.  If  that  mode  properly  distributes 
the  benefits  among  the  owners  of  i)roperty  benefited,  there  can  be 
no  objection  to  its  use.  Jersey  City  v.  Iloweth,  30  N.  J.  Law,  529: 
Pudney  v.  Village  of  Passaic,  37  N.  J.  Law.  65.  The  commission- 
ers assessed  all  the  lands  which,  in  their  judgment,  were  benefited. 
This  judgment  has  not  been  successfully  assailed  by  the  evidence 
or  facts  of  the  case.  Hunt  v.  Mayor,  etc.,  of  Railway,  39  N.  J. 
Law,  646. 


218  IMPROVEMENTS 

The  last  reason  to  be  discussed — the  first  among  the  reasons  of 
the  prosecutors — as  an  objection  to  this  assessment  is  that  "the 
said  assessment  upon  the  lands  of  the  prosecutors  for  the  said  im- 
provement is  largely  in  excess  of  all  benefits  the  said  lands  will  de- 
rive from  said  improvement,"  and  this  includes  a  consideration  of 
the  contention  of  the  prosecutors  that  a  very  large  portion  of  this 
cost  and  expense  should  have  been  borne  by  the  borough  at  large. 
*  *  *  'pi^ie  report  of  the  commissioners  is  before  us,  and  the 
rule  of  law  is  clear  that  upon  these  points  their  judgment  cannot 
be  interfered  with,  unless  the  force  of  the  circumstances  and  evi- 
dence convinces  us  that  it  is  wrong,  and  that  an  injustice  has  been 
done.  The  rule  is  well  established  that  the  assessments  for  ben- 
efits for  street  improvements,  where  the  commissioners  have  been 
over  the  ground,  and  examined  the  premises,  and  made  their  report 
of  estimates  according  to  the  principles  prescribed  in  the  charter, 
will  not  be  set  aside  upon  conflicting  evidence  of  the  justice  or  suf- 
ficiency of  said  assessment.  It  must  clearly  appear  that  injustice 
has  been  done  before  an  assessment  will  be  set  aside  upon  all  the 
facts.  This  is  the  rule,  notwithstanding  the  statute  which  author- 
izes the  court  to  determine  disputed  questions  of  fact  as  well  as 
law.  Jellifif  V.  Newark,  48  N.  J.  Law,  101,  2  Atl.  627;  Hegeman  v. 
City  of  Passaic,  51  N.  J.  Law,  113,  16  Atl.  62.     *     *     *^^ 


CITY  OF  RALEIGH  v.  PEACE. 

(Supreme  Court  of  North  Carolina,  1892.    110  N.  0.  32,  14  S.  E.  521,  17  L.  R. 

A.  330.) 

Action  by  the  city  of  Raleigh  against  J.  A.  Peace  to  recover  a 
special  assessment.    Judgment  for  plaintiff.     Defendant  appeals. 

She;phe;rd,  J.^-  While  we  are  of  the  opinion,  for  the  reasons 
hereinafter  stated,  that  the  particular  judgment  rendered  in  this 
action  cannot  be  sustained,  yet,  as  the  validity  of  the  ordinance  un- 
der which  the  assessment  is  made  is  drawn  in  question,  and  as  it 
is  of  great  importance  that  it  should  be  passed  upon  by  this  court, 
we  deem  it  our  duty  to  consider  this  and  such  other  points  that  are 
presented  in  the  record  as  may  be  necessary  to  an  intelligent  dis- 
position of  the  present  and  perhaps  other  cases  which  may  arise 
upon  the  subject. 

1.  The  authority  of  the  legislature,  either  directly  or  through  its 
local  instrumentalities,  to  exercise  the  taxing  power  in  the  form  of 
local  or  special  assessments,  has  been  so  firmly  established  by  judi- 

11  See,  also,  Payne  v.  Village  of  South  Springfield,  ante,  p.  203. 

12  Part  of  this  opinion  and  all  of  the  dissenting  opinion  of  Merrimon,  J.. 
are  omitted. 


SPECIAL   ASSESSMENTS  210 

cial  decision  in  this  and  other  states  of  the  Union  that  it  can  hardly, 
at  this  late  day,  be  considered  an  open  question ;  but,  as  it  seems 
to  be  controverted  by  the  argument  of  counsel,  it  may  not  be  im- 
proper to  state  in  a  general  way  the  principle  upon  which  it  is 
founded,  as  well  as  to  refer  to  some  of  the  multitude  of  authorities 
in  its  support. 

Judge  Cooley,  in  his  work  on  Taxation  (page  606),  says  that 
special  assessments  "are  made  upon  the  assumption  that  a  portion 
of  the  community  is  to  be  specially  and  peculiarly  benefited,  in  the 
enhancement  of  the  value  of  property  peculiarly  situated,  as  re- 
gards a  contemplated  expenditure  of  public  funds ;  and,  in  addition 
to  the  general  levy,  they  demand  that  special  contributions,  in  con- 
sideration of  the  special  benefit,  shall  be  made  by  the  persons  re- 
ceiving it." 

"The  rationale  of  the  system,"  says  Mr.  Burroughs,  "is  that  the 
purpose  is  a  public  one  which  justifies  the  levy  of  a  tax,  but  the 
benefit  of  the  improvement  is  not  only  local,  but  also  specific,  bene- 
fiting particularized  property ;  and  therefore  the  tax  may  be  levied 
on  this  property  which  receives  a  benefit  over  and  above  other 
property  in  the  state.  *  *  *  An  assessment  for  improvements 
is  not  considered  as  a  burden,  but  as  an  equivalent  or  compensation 
for  the  enhanced  value  which  the  property  derives  from  the  im- 
provement."   Burroughs,  Tax'n,  460. 

Judge  Dillon  (2  Dill.  Mun.  Corp.  §  752n)  quotes  with  entire  ap- 
proval the  language  of  Slidell,  C.  J.,  in  Municipality  No.  2  v.  Dunn, 
10  La.  Ann.  17.  The  chief  justice  says:  "I  must  repeat  my  convic- 
tion that  the  system  of  paying  for  local  improvements  wholly  out 
of  the  general  treasury  is  inequitable,  and  will  result  in  great  ex- 
travagance, abuse,  and  injustice.  I  think  the  system  of  making  par- 
ticular localities,  which  are  specially  benefited,  bear  a  special  por- 
tion of  the  burden,  is  safer,  and  more  just  to  the  citizens  at  large,  by 
whose  united  contributions  the  city  treasury  is  supplied.  What  is 
taken  out  of  the  treasury  is  out  of  the  pockets  of  all  the  proprie- 
tors." 

Speaking  of  special  assessments,  the  supreme  court  ot  Missouri. 

in  Lockwood  v.  St.  Louis,  24  Mo.  20.  said  that  "their  intrinsic  jus- 
tice strikes  every  one.  If  an  improvement  is  to  be  made,  the  bene- 
fit of  which  is  local,  it  is  but  just  that  the  property  benelited  should 
bear  the  burden.  While  the  few  ought  not  to  be  taxed  for  the  ben- 
efit of  the  whole,  the  whole  ought  not  to  be  taxed  for  the  few. 
*  *  *  General  taxation  for  a  mere  local  |)uri)ose  is  unjust.  It 
burrlcns  those  who  are  not  benefited,  and  benefits  those  who  arc 
exempt  from  the  burden." 

These  assessments  are  not  to  be  confoundrd  with  thr  exercise  ot 
the  right  of  eminent  domain,  (Cooley.  Const.  Lim.  *498;  2  Dill. 
Mun.  Corp.  §  7.38;  Lewis,  Em.  Dom.  §  4;)  and  it  is  also  to  be  ob- 
served that  while  they  arc  taxes  in  a  general  sense,  in  that  the  au- 


-20  IMPROVEMENTS 

thority  to  levy  them  must  be  derived  from  the  legislature,  they  are 
nevertheless  not  to  be  considered  as  taxes  falling  within  the  re- 
straints imposed  by  article  5,  §  3,  of  the  constitution,  although  the 
principle  of  uniformity  governs  both.  Shuford  v.  Commission- 
ers, 86  N.  C.  552;  Cain  v.  Commissioners,  86  N.  C.  8;  Busbce  v. 
Commissioners,  93  N.  C.  143;  Cooley,  Const.  Lim.  *498;  2  Dill. 
Alun.  Corp.  §  755  et  seq. 

The  principle  deducible  from  the  foregoing  quotations  finds  a 
striking  illustration  in  the  facts  of  the  present  case.  The  district 
improved  by  the  pavement  embraces  only  a  part  of  one  street ;  and, 
while  the  improvement  may  add  very  greatly  to  the  convenience 
and  comfort  of  all  of  the  citizens,  it  at  the  same  time  confers  upon 
the  abutting  real  property  an  enhanced  pecuniary  value,  out  of  all 
proportion  to  the  benefits  inuring  to  the  public  at  large.  Would  it 
be  just  that  all  should  be  taxed  alike,  and  that  the  owner  of  property 
in  a  remote  part  of  the  city  be  compelled  to  contribute  as  much  to- 
wards the  particular  improvement  as  those  whose  lands  are  thus 
peculiarly  benefited?  This  would  savor  very  much  of  the  "forced 
contributions"  of  the  olden  time,  which  are  so  generally  denounced 
as  obnoxious  to  the  principles  of  free  government;  and  the  bare 
statement  of  the  proposition  shocks  all  sense  of  justice,  and  furnish- 
es its  own  refutation.  It  is,  therefore,  but  pre-eminently  just,  as 
well  as  the  duty  of  the  lawmaking  power,  to  provide  for  an  equita- 
ble adjustment  of  such  burdens  in  proportion  to  the  benefits  con- 
ferred ;  and  it  is  for  the  very  purpose,  as  we  have  seen,  of  accom- 
plishing this  end,  and  of  preventing  so  great  a  perversion  of  the 
taxing  power,  that  these  local  or  special  assessments  are  almost  uni- 
versally resorted  to.  It  is  true  that  the  power  to  levy  such  assess- 
ments is  sometimes  abused,  and  that  some  of  the  methods  adopted 
have  been  judicially  condemned,  but  the  existence  of  the  power  it- 
self is  as  well  established  as  it  is  possible  by  judicial  decision  to  es- 
tablish any  legal  principle  whatever.  Wilmington  v.  Yopp,  71  N. 
C.  76;  Cain  v.  Commissioners,  supra;  Busbee  v.  Commissioners, 
supra;  2  Dill.  Mun.  Corp.  §  761;  Cooley,  Const.  Lim.  506;  1  Hare, 
Amer.  Const.  Law,  301 ;  Elliott,  Roads  &  S.  370. 

2.  We  will  now  consider  whether  the  power  of  the  legislature 
was  properly  exercised  in  the  case  before  us.  It  is  a  general  rule, 
everywhere  conceded,  that  the  discretion  of  the  legislature  in  levy- 
ing taxes,  when  exercised  within  constitutional  limits,  is  conclu- 
sive; but  in  respect  to  special  assessments  the  principle  is  ques- 
tioned, and  it  is  urged  that  these  not  being  strictly  taxes,  and  not 
subject  as  such  to  the  restraints  imposed  by  the  constitution,  but 
being  founded  solely,  as  some  authors  say,  upon  the  principle  of 
betterments  of  the  property  to  the  extent  of  the  improvement,  the 
courts  should  not  surrender  the  power  to  review  an  arbitrary  deci- 
sion of  the  legislature,  either  as  to  the  necessity  for,  or  the  benefi- 


SPECIAL  ASSESSMENTS  221 

cial  character  of,  a  particular  improvement,  or  the  manner  in  which 
the  benefits  are  to  be  ascertained  and  assessed.  That  the  judicial 
power  has  been  successfully  invoked  in  some  instances  will  appear 
from  the  cases  of  Seely  v.  Pittsburgh,  82  Pa.  3(jO,  22  Am.  Rep.  700; 
Washington  Avenue,  69  Pa.  352,  8  Am.  Rep.  255;  and  other  deci- 
sions cited  in  the  notes  to  section  75Z  of  volume  2  of  Dillon  on  Mu- 
nicipal Corporations.  Rufiin,  J.,  in  Shuford  v.  Commissioners,  su- 
pra, says  that  such  assessments  "are  committed  to  the  unrestrained 
discretion  of  the  law-making  power  of  the  state,  only,  as  I  take  it, 
that  the  burden  imposed  on  each  citizen's  property  must  be  in  pro- 
portion to  the  advantages  it  may  derive  therefrom." 

The  latter  part  of  the  sentence  very  clearly  implies  the  power  of 
the  courts  to  interfere  to  some  extent,  and  in  this  we  very  heartily 
concur;  but  it  is  not  essential,  in  this  case,  that  we  should  define 
and  mark  the  limits  of  this  power,  and  it  is  sufficient  to  say  that, 
according  to  all  of  the  authorities,  the  legislature  or  its  duly-author- 
ized instrumentalities  are  at  least  primarily  the  judges  in  respect 
to  the  particulars  mentioned,  and  that  their  decision  will  not  be 
disturbed  unless  it  clearly  appears  that  there  is  an  absence  of  pow- 
er, or  that  the  particular  method  prescribed  for  the  assessment  of 
the  peculiar  benefits  to  the  abutting  property  is  so  plainly  inequi- 
table as  to  offend  some  constitutional  principle.  The  power  to  make 
such  assessments  must  be  clearly  authorized  by  the  legislature,  but 
it  is  not  necessary,  and,  "of  course  not  to  be  expected.  Indeed,  it 
is  scarcely  conceivable  that  the  legislature  should,  in  conferring 
authority  upon  local  bodies,  specify  in  minute  detail  the  incidents 
of  the  power.  The  courts  generally  hold  that  necessary  incidental 
and  subordinate  powers  pass  with  the  grant  of  the  principal  power. 
Any  other  ruling  would  make  it  practically  impcjssible  to  frame 
statutes  capable  of  reasonable  enforcement.  In  matters  of  street 
improvements  and  local  assessments,  as  in  kindred  matters,  it  is 
generally  held  that  a  power  clearly  conferred  in  general  words  will 
carry  all  the  incidental  authority  essential  to  the  execution  of  the 
power  in  ordinary  and  appropriate  methods."  Elliott,  Roads  & 
S.  374. 

It  is  urged  that  all  of  these  subordinate  incidents  should  be  pro- 
vided for  in  the  act  granting  the  power,  because  of  section  4,  art. 
8,  of  the  constitution,  which  requires  the  legislature  to  provide  for 
the  organization,  etc.,  of  incorporated  towns,  etc.,  "and  to  restrict 
their  power  of  taxation,  assessment,  borrowing  money,"  etc.  Sim- 
ilar provisions  have,  upon  the  best  authority,  been  hfld  inapi»licablc 
to  assessments  of  this  character.  They  are  construed,  says  Judge 
Dillon,  (Mun.  Corp.  §  77^,)  "not  to  apply  to  special  as.scssmcnts  by 
municipal  corporations  made  by  authority  of  the  legislature  for  lo- 
cal imi)rovcments."  The  restrictions  in  such  cases  arc  to  be  found 
in   those  general  princi|)lcs  of  the  constituti"'i   uln'.h  pti.irrt    the 


222  IMPROVEMENTS 

liberty  and  property  of  every  citizen.  Even  if  such  a  provision  did 
apply,  it  is  not  easy  to  understand  how  the  duty  to  restrict  the 
power  requires  that  all  of  the  incidents  of  its  exercise  shall  be  pre- 
scribed by  the  legislature.  Neither  is  it  essential  that  the  act  of  the 
legislature,  or  an  ordinance  made  under  its  authority,  should  ex- 
pressly state  that  the  contemplated  improvement  is  necessary,  (El- 
liott, Roads  «&  S.  385  ;)  nor  is  it  required  that  the  act  should  ex- 
pressly declare  that  the  assessments  are  to  be  made  according  to 
the  benefits  conferred.  Both  of  these  are  implied  from  the  very 
nature  of  this  species  of  taxation,  and  that  this  is  so  is  apparent 
from  the  action  of  the  court  in  upholding  such  assessments  under 
acts  which  make  no  reference  to  such  particulars.  Cain  v.  Com- 
missioners, supra;  Shuford  v.  Commissioners,  supra;  Busbee  v. 
Commissioners,  supra. 

Viewed  in  this  light,  we  can  see  no  objection  to  the  ordinance  un- 
der consideration.  It  very  clearly  provides  for  a  taxing-district,  to- 
wit,  "Fayetteville  street,  between  Morgan  and  Martin  streets," 
and  it  further  provides  that  upon  the  failure  of  the  abutting  owners 
to  comply  with  its  requirements  the  city  may  make  the  designated 
improvements  at  the  cost  of  $1.20  per  square  yard.  This  provision 
as  to  the  cost,  which  is  found  by  the  court  to  be  reasonable,  very 
plainly  implies  that  the  expense  of  the  improvement  in  the  entire 
district  had  been  previously  estimated;  and  thus  we  have  an  ap- 
portionment between  the  abutting  owners  and  the  city,  (the  latter 
paying  one-third,)  and  also  an  apportionment  as  to  the  remaining 
two-thirds  between  the  abutting  proprietors  according  to  the  front- 
age. No  objection  is  urged  as  to  the  apparently  equitable  adjust- 
ment between  the  city  and  the  abutting  owners,  but  it  is  insisted 
that  the  frontage  rule  is  an  improper  method  of  ascertaining  the 
benefits  which  inure  to  the  respective  lots,  and  that  these  should  be 
estimated  by  the  actual  appraisement  of  each. 

We  have  seen  that  such  assessments  are  based  upon  the  princi- 
ple of  benefits  to  the  abutting  property,  but  the  manner  of  estimat- 
ing such  benefits  is  not  confined  to  actual  appraisement  by  apprais- 
ers appointed  for  that  purpose.  This  would  seem  to  be  a  very  fair 
and  equitable  rule,  but  its  practical  working  in  some  instances  has 
led  to  injustice;  and  if  the  legislature,  acting,  as  it  is'presumed  to 
do,  upon  information  as  to  the  situation  and  character  of  the  proper- 
ty, the  depth  of  the  lots,  etc.,  chooses,  in  eflr'ect,  to  make  an  appraise- 
ment itself  by  the  adoption  of  a  standard  like  the  frontage  rule,  it 
is  not  easy  to  understand  why,  in  such  cases,  the  same  measure  of 
justice  may  not  be  attained.  In  Hammett  v.  Philadelphia,  65  Pa. 
St.  155,  it  was  said  by  Judge  Sharswood,  delivering  the  opinion, 
that  "perhaps  no  fairer  rule  can  be  adopted  than  the  proportion  of 
feet  front,  although  there  must  be  some  inequalities  of  the  lots  dif- 
fering in  situation  and  depth.     Appraising  their  market  values,  and 


SPECIAL   ASSESSMENTS  223 

fixing  the  proportions  according  to  these,  is  a  plan  open  to 
favoritism  or  corruption,  and  other  objections."  Even  where  the 
latter  rule  is  adopted  the  buildings  should  be  excluded  from  the  val- 
uation, "as  the  improvements,"  says  Judge  Cooley,  "v^hile  increas- 
ing largely  the  market  value  of  land,  do  not  usually  perceptibly  in- 
crease the  value  of  the  buildings  erected  upon  it."  Cooley,  Tax'n, 
649. 

If  the  buildings  are  not  to  be  considered,  (and  this  is  undoubted- 
ly true),  we  can  very  readily  conceive  how  the  frontage  rule  may 
be  quite  as  efficacious  as  any  other  in  ascertaining  the  benefits — 
that  is,  the  enhanced  pecuniary  value — where,  from  the  similarity 
in  situation,  etc.,  of  the  different  lots,  there  can  be  no  gross  in- 
equalities. The  same  eminent  authority  also  states  (page  638)  that 
the  two  methods  of  assessing  benefits,  between  which  a  choice  is 
usually  made,  is  by  assessors  or  commissioners  appointed  for  that 
purpose,  or  by  "an  assessment  by  some  definite  standard  fixed  upon 
by  the  legislature  itself,  and  which  is  applied  to  the  estates  by  a 
measurement  of  length,  quantity,  or  value."  In  speaking  of  as- 
sessments by  the  front  foot,  he  says  (page  644)  that  "such  a  meas- 
ure of  apportionment  seems  at  first  blush  to  be  perfectly  arbitrary, 
and  likely  to  operate  in  some  cases  with  great  injustice,  but  it  can- 
not be  denied  that,  in  the  case  of  some  improvements,  frontage  is 
a  very  reasonable  measure  of  benefits, — much  more  than  value 
could  be, — and  perhaps  approaching  equality  as  nearly  as  any  other 
estimate  of  benefits  made  by  the  judgment  of  men.  However  this 
may  be,  the  authorities  are  well  united  in  the  conclusion  that  front- 
age may  be  lawfully  made  the  basis  of  apportionment." 

Similar  language  is  also  used  by  the  same  author  in  his  wovk  on 
Constitutional  Limitations,  (506,)  and  cited  with  approval  in  Wil- 
mington V.  Yopp,  supra.  In  the  well-considered  work  on  Roads  & 
Streets,  (396,)  by  Elliott,  it  is  said  that  "the  system  which  leads  to 
the  least  mischievous  and  unjust  consequences  is  that  which  takes 
into  account  the  entire  line  of  the  way  improved,  and  apjjortions 
the  expense  according  to  the  frontage;  for  it  takes  into  considera- 
tion the  benefit  to  each  property  owner  that  accrues  from  the  im- 
provement of  the  entire  line  of  the  way,  and  does  not  impose  uimn 
one  lot-owner  an  unjust  portion  of  the  burden."  The  princii)lc  is 
also  fully  sustained  by  the  following  authorities,  which  are  only  a 
part  of  the  large  number  that  might  be  cited.  Burroughs.  Tax'n. 
469;  2  Dill.  Mun.  Corp.  S§  752,  701.  809;  2  Desty,  Tax'n.  1263; 
Pennock  v.  Hoover,  5  Rawle  (Pa.)  291  ;  Magce  v.  Com..  46  Pa.  358; 
Covington  v.  Boyle,  6  Bush  (Ky.)  204;  State  v.  Elizabeth.  30  N. 
J.  Law,  365,  31  N.  J.  Law,  547;  State  v.  I'ullcr.  34  N.  J.  Law,  227; 
Wilder  v.  Cincinnati,  26  Ohio  St.  284;  Parker  v.  Clinllis.  9  Kan. 
155;  Xeenan  v.  Smith,  50  Mo.  525;  Whiting  v.  Quackenbush,  54 
Cal.  306;    Palmer  v.  Stumph,  29  Ind.  329;    Allen  v.  Drew.  44  Vt. 


224  IMPROVEMENTS 

174;  Motz  V.  Detroit,  18  Mich.  495;  King  v.  Portland,  2  Or.  146; 
Cleveland  v.  Tripp,  13  R.  I.  50;  White  v.  People,  94  111.  604;  She- 
ley  V.  Detroit,  45  Mich.  431,  8  N.  W.  Rep.  52.     *     *     * 

It  is  insisted,  however,  with  much  earnestness,  that,  conceding 
that  the  ordinance  prescribes  a  valid  method  of  apportionment,  still 
it  cannot  be  sustained  unless  the  power  to  make  it  is  conferred  by 
the  legislature,  and  that  such  power  has  not  been  conferred  upon 
the  city  of  Raleigh.  This  position  is  founded  upon  the  idea  that 
the  charter  does  not  create  or  authorize  the  creation  of  a  taxing- 
district,  but  simply  charges  the  abutting  owner  with  the  whole  cost 
of  the  improvement  in  front  of  his  lot,  and  that,  there  being  an  ab- 
sence of  authority  to  make  any  apportionments  according  to  bene- 
fits, the  ordinance  is  void.  The  imposition  of  such  a  charge  has 
been  condemned  by  some  authorities  and  sustained  by  others. 
Without  pausing  to  determine  how  this  may  be,  and  conceding,  for 
the  purpose  of  the  discussion,  that  the  charter  bears  the  construc- 
tion insisted  upon,  and  that  such  an  assessment  is  for  that  reason 
invalid,  we  are  nevertheless  of  the  opinion  that  the  ordinance  is 
fully  supported  by  legislative  sanction.  In  chapter  62,  §  3803,  of  the 
Code,  ("Towns  and  Cities,")  it  is  provided  that  the  commissioners 
or  aldermen  "may  cause  such  improvements  in  the  town  to  be  made 
as  may  be  necessary,  and  apportion  the  same  equally  among  the  in- 
habitants by  assessments  of  labor  or  otherwise."  Here  we  have  a 
very  comprehensive  power  granted  the  commissioners  or  aldermen 
for  the  improvement  of  streets ;  and  the  authority  to  apportion  the 
cost  of  the  improvement  is  not  only  implied  by  the  power  to  make 
"assessments,"  (And.  Law  Diet. ;  Bouv.  Law  Diet.  "Assess,")  but 
is  expressly  conferred. 

Now,  if  it  be  granted,  as  we  think  it  should  be,  that  the  general 
act  is  deficient,  in  that  it  does  not  provide  for  the  enforcement  of 
such  assessments  against  abutting  real  property,  still  it  is  good  as 
far  as  it  goes,  and  is  not  repealed  by  the  charter  as  amended,  unless 
inconsistent  therewith.  Code,  §  3827.  If  it  be  said  that  the  charter 
conflicts  as  to  that  part  which  requires  the  whole  cost  to  be  charged 
against  the  abutting  property  without  any  apportionment,  and  if, 
as  contended,  such  a  provision  is  void,  it  would  be  impotent  to 
work  a  repeal  of  that  part  of  the  general  act  which  does  authorize 
such  apportionment.  If  it  does  not  conflict,  then,  of  course,  the 
general  act  may  supplement  the  special  act,  and  the  two  may  be 
construed  in  pari  materia.  So,  taking  it  either  way,  the  authority 
to  apportion  the  cost  according  to  benefits,  as  provided  in  the  ordi- 
nance, would  be  supported;  and  the  power  to  collect  the  assess- 
ments being  expressly  granted,  and  the  manner  of  collection  pre- 
scribed, it  must  follow  that,  in  the  total  absence  of  anything  to 
show  an  abuse  of  power  or  any  gross  inequalities,  the  assessment 
in  question  may  be  enforced. 


SPECIAL   ASSESSMENTS  225 

We  are  of  the  opinion,  however,  that  no  personal  judgment  can 
be  rendered  against  the  abutting  owner,  and  that  so  much  of  the 
amendment  to  the  charter  which  provides  for  such  a  judgment  is 
invalid.     *     *     *     Reversed. 


PALMER  V.  CITY  OF  DANVILLE. 

(Supreme  Court  of  Illinois,  1S94.    154  111.  156,  38  N.  E.  1067.) 

Petition  by  the  city  of  Danville  for  the  confirmation  of  a  special 
tax  levied  by  the  authority  of  the  city  council  to  pay  the  cost  of 
providing  and  putting  in  sewer  and  water  service  pipes  for  house 
connections  with  the  main  sewer  and  water  pipes  in  Main  street 
in  said  city.  L.  T.  Palmer  and  others  filed  objections.  There  was 
judgment  of  confirmation,  and  the  objectors  bring  error. 

Carter,  J.'^  *  *  *  It  is  objected  that  the  special  tax  was 
"not  levied  by  any  rate  of  equality  upon  the  real  estate  situated 
upon  the  said  Main  street,  by  or  in  proportion  to  frontage,  value, 
area,  or  otherwise,  but  has  been  unequally  and  unjustly  levied"; 
also  that  the  city  had  no  power  to  levy  the  special  tax  to  pay  for 
said  improvement  under  article  9  of  the  act  of  1872. 

The  record  shows  that  the  street  was  54  feet  wide  between  the 
curbing;  that  the  street  railway  track  occupied  the  center;  that 
the  sewer  main  was  laid  along  the  south  side,  about  10  feet  from 
the  curb,  and  the  water  main  along  the  north  side  of  the  street. 
These  house  connection  pipes  extended  from  the  respective  mains, 
each  way,  across  the  street,  to  the  curbing,  and  no  further;  so  that 
upon  the  south  side  of  the  street  the  sewer-service  pipes  were  10 
feet,  and  the  water-service  pipes  42  feet,  long,  while  on  the  north 
side  the  sewer  pipes  were  44  feet,  and  the  water  pipes  14  feet,  long. 
The  cost  of  putting  in  these  sewer  and  water  connections  on  the 
south  side  of  the  street,  and  of  assessing  and  collecting  the  la.\ 
therefor,  and  for  which  the  assessment  was  conlirmcd,  was  1>.W.52 
for  each  house  or  lot,  while  on  the  north  side  the  amount  was  $50.- 
07.  So  that  a  lot  on  the  north  side  of  the  street,  having  the  same 
frontage,  area,  value,  and  receiving  the  same  benefits  from  the  im- 
])rovement  as  a  lot  on  the  south  side,  was  assessed  a  much  larger 
amount.  This  was  done  in  accordance  with  tlie  jjrovisioiis  of  the 
ordinance,  and  the  question  is  directly  i)resenled  whclher  the  cily 
had  the  power  to  assess  the  cost  of  each  lateral  service  pipe  against 
the  lot  with  which  it  was  intended  to  connect,  instead  of  appor- 
tioning the  entire  cost  of  the  improvement  among  the  several  lots 
and  parcels  of  land  contiguous  to  or  ahiitting  iipftn  the  improvc- 

i^The  statement  of  facts  l.s  rewrltton  and  part  of  tblH  oi^inion  and  all  of 
the  concnrrin^  (ipiiiion  of  I'.}iile.v,  J.,  are  omitted. 

COOLEY  Ca.ses  Mun.C. — 15 


226  IMPROVEMENTS 

ment,  upon  some  principle  or  rule  of  equality,  such  as  the  frontage, 
area,  or  value  of  the  respective  lots. 

Counsel  for  the  city  says  that:  "This  assessment  was  made  up- 
on each  lot  with  reference  only  to  the  cost  of  the  pipe  leading 
thereto.  Each  lot  was  assessed  for  its  special  connection,  and  the 
committee's  estimate  was  made  on  that  basis."  That  "while  the 
improvement  was  a  general  one,  in  one  sense,  in  another  it  was 
several  as  to  each  lot," — and  insists  that  it  would  be  unequal  and 
unjust  to  require  the  property  owner  on  the  south  side  of  the 
street,  requiring  only  10  feet  of  pipe  to  connect  with  the  sewer,  to 
pay  as  much  for  this  local  improvement  as  the  lot  owner  on  the 
north  side  of  the  street,  requiring  44  feet  of  pipe  to  connect  his  lot 
with  the  sewer. 

It  will  be  noticed  that  the  ordinance  provides  that  the  special 
tax  is  to  be  levied  and  collected  in  accordance  with  article  9  of  the 
act  of  1872,  which  vests  the  corporate  authorities  of  cities  and  vil- 
lages "with  power  to  make  local  improvements  by  special  assess- 
ments or  by  special  taxation,  or  both,  of  contiguous  property,  or 
general  taxation,  or  otherwise,  as  they  shall  by  ordinance  pre- 
scribe." This  ordinance  prescribed  that  this  improvement  should 
be  made  by  special  taxation,  and  directed  that  a  special  tax  be  as- 
sessed upon  the  respective  tracts  and  pieces  of  land  for  which  the 
service  pipes  were  to  be  respectively  provided,  and  which  abut  up- 
on such  service  pipes,  equal  to  the  cost  of  furnishing  and  laying  the 
same.  The  power  conferred  to  levy  this  special  tax  is  referable  to 
the  power  of  taxation,  and  must  be  strictly  construed.  By  the  or- 
dinance the  city  created  a  district  composed  of  the  property  con- 
tiguous to  the  improvement,  for  the  purpose  of  levying  the  special 
tax  to  make  the  improvement.  Cooley,  Tax'n,  143,  151,  152;  Light- 
ner  v.  City  of  Peoria,  150  111.  80,  Z7  N.  E.  69;  Davis  v.  City  of 
Litchfield,  145  111.  322,  33  N.  E.  888,  21  E.  R.  A.  563.  The  basis  on 
which  the  power  to  levy  special  assessments  or  special  taxation  on 
property  contiguous  or  adjacent  to  the  improvement,  to  pay  for 
its  construction,  rests  on  the  benefits  which  it  is  considered  will 
inure  to  such  property  by  the  making  of  the  improvement.  City 
of  Bloomington  v.  Chicago  &  A.  R.  Co.,  134  111.  459,  26  N.  E.  366, 
and  cases  cited;  Louisville  &  N.  R.  Co.  v.  City  of  East  St.  Louis, 
134  111.  656,  25  N.  E.  962;  Davis  v.  City  of  Litchfield,  145  111.  313, 
ZZ  N.  E.  888,  21  L.  R.  A.  563 ;  Kuehner  v.  City  of  Freeport,  143  111. 
92,  32  N.  E.  372,  17  L.  R.  A.  774. 

So  clearly  is  this  founded  on  just  legal  principles,  and  generally 
understood,  that  these  assessments  or  taxes  are  often  called  "bene- 
fits." In  the  levy  of  special  taxes  to  make  local  improvements  un- 
der article  9  of  our  statute,  while  the  question  of  benefits  is  one  that 
must  be  addressed  to  the  city  council,  and  the  decision  of  the  coun- 
cil is  not  generally  open  to  review  by  the  courts,  but  is  final,  yet 


SPECIAL   ASSESSMENTS  227 

it  is  clear,  both  upon  principle  and  authority,  that  for  unreasonable- 
ness, arbitrary  abuse  of  power,  or  violation  of  the  fundamental 
principles  upon  which  the  power  of  taxation  rests,  the  validity  of 
such  an  ordinance,  as  well  as  all  proceedings  under  it,  may  be  at- 
tacked in,  and  passed  upon  by,  the  courts.  Cooley,  Tax'n,  619,  622, 
and  cases  cited;  Craw  v.  Village  of  Tolono,  96  111.  261,  36  Am. 
Rep.  143;  City  of  Bloomington  v.  Chicago  &  A.  R.  Co.,  134  111.  451, 
26  N.  E.  366;  Louisville  &  N.  R.  Co.  v.  Citv  of  East  St.  Louis,  134 
Til.  656,  25  N.  E.  962;  Davis  v.  City  of  Litchfield,  145  111.  326.  33 
N.  E.  888,  21  L.  R.  A.  563.  In  the  case  last  cited  an  ordinance  of 
the  city  of  Litchfield  was  by  this  court  declared  invalid,  where  it 
provided  that  the  cost  of  the  improvement — the  paving  of  a  street — 
should  be  apportioned  and  assessed  against  the  abutting  property 
according  to  frontage,  but  the  assessment  against  each  lot  was  to 
be  only  the  amount  of  the  improvement  in  front  of  any  such  lot. 
It  was  there  said  that  the  ordinance  had  the  effect  of  creating  a 
taxing  district  composed  of  the  property  contiguous  to  the  improve- 
ment, and  that  assessing  each  lot  with  the  cost  of  paving  the  street 
in  front  of  it  was  "not  the  imposition  of  a  special  tax  upon  contig- 
uous property,  but  an  arbitrary  imposition  of  the  burden  upon  each 
lot  of  making  the  improvement  in  front  of  it,"  and  that  "it  is  of  the 
essence  of  a  tax  that  it  shall  be  levied  for  a  public  purpose,  and  shall 
be  uniform  in  respect  to  persons  and  property  within  the  taxing 
district,  whether  that  be  the  state,  county,  municipality,  or  dis- 
trict thereof  created  for  local  improvement,  and  that  it  be  laid  ac- 
cording to  some  fixed  rule  of  apportionment,"  and  that  "eciuality 
of  the  burden  is  of  the  very  essence  of  the  right."  See,  also,  1 
Desty,  Tax'n,  29;  Dill.  Mun.  Corp.  587.  "The  district  having  been 
established  by  ordinance,  the  tax  is  to  be  imposed  upon  some  rule 
of  apportionment  which  shall,  in  theory  at  least,  conform  to  and  be 
productive  of  uniformity  in  its  levy."  Davis  v.  City  of  Litchlicld. 
supra.  The  ordinance,  and  proceedings  under  it,  involved  in  the 
case  at  bar,  contain  the  same  vice  for  which  the  ordinance  in  the 
Litchfield  Case  was  declared  void. 

Should  it  be  said  that  there  was  equality  and  uniformity  in  t he- 
levy  of  the  tax,  as  to  property  situated  <'ii  the  same  side  of  the 
street,  and  that  it  would  be  unjust  to  make  llio^c  situated  nearer 
the  sewer  ctjntribute  to  the  expense  of  the  connections  of  those 
situated  on  the  other  side  of  the  street,  and  further  away,  it  is  a  .suf- 
ficient answer  to  say  that  the  ordinance  reciuired  the  cost  of  con- 
necting each  lot  to  be  assessed  against  such  lot,  and  the  mere  cir- 
cumstance that  the  location  of  the  main  sewer  was  such  that  it  re- 
quired less  expen.se  to  make  the  connection  on  one  .side  than  (»n 
the  other  could  not  be  urged  as  a  sufficient  reason  for  violating 
the  rule  of  equality  and  uniformity  which  should  have  been  ob- 
served.    Nor  would  there  be  any  injustice  in  assessing  the  lots  on 


L 


228  IMPROVEMENTS 

the  south  at  the  same  rate  as  on  the  north  side,  for,  as  we  have 
seen,  the  levy  of  the  tax  must  have  been  based  on  the  benefits  ac- 
cruing to  the  property  from  the  making  of  the  improvement;  and, 
while  the  question  of  benefits  was  one  for  the  city  council  to  de- 
cide, it  could  not  arbitrarijy  decide  and  ordain  in  the  same  ordinance 
that  the  property  on  the  south  side  of  the  street  was  benefited  in  a 
greater  degree  by  these  lateral  service  pipes  than  the  property  on 
the  north  side,  simply  because  the  main  sewer  was  laid  on  the 
south  side.  Nor  did  the  ordinance  so  declare.  It  provided  for 
levying  the  cost  on  each  lot  of  putting  in  the  service  pipe  connect- 
ing it  with  the  sewer  and  water  mains,  without  regard  to  the  prox- 
imity of  the  lot  to  the  main,  and  without  regard  to  the  length  of 
pipe  required  to  make  the  connection.  If,  for  any  reason,  such  as 
the  length  of  the  pipe,  obstructions  in  the  vv^ay  of  placing  it,  or 
other  cause,  one  of  these  service-pipe  connections  cost  more  than 
another,  the  assessment  must,  under  the  ordinance,  have  been 
made  accordingly. 

The  contention  of  defendant  in  error  in  support  of  the  judgment, 
based  on  the  alleged  injustice  of  requiring  the  lot  owner  who  need- 
ed only  10  feet  of  pipe  to  connect  his  lot  with  the  sewer  to  contrib- 
ute to  the  cost  of  his  opposite  neighbor's  connection,  which  re- 
quired 42  feet,  is  an  argument  against  the  policy  of  constructing 
such  an  improvement  by  special  taxation.  In  Holt  v.  City  of  East 
St.  Louis,  150  111.  530,  37  N.  E.  927,  this  court  said,  "The  object  of 
special  taxation  is  not  to  have  each  lot  pay  for  the  actual  cost  of 
what  is  done  in  front  of  it,  but  its  proportionate  share  of  the 
whole."  Judge  Cooley,  in  his  work  on  Taxation  (page  646),  in 
speaking  of  the  method  of  requiring  each  lot  to  pay  for  the  im- 
provement in  front  of  it,  says :  "Instead  of  establishing  a  taxing 
district,  and  apportioning  the  cost  throughout  it  by  some  standard 
of  benefit,  actual  or  presumptive,  the  case  of  each  individual  lot 
fronting  on  the  improvement  has  been  taken  by  itself,  and  that  lot 
has  been  assessed  with  the  cost  of  the  improvement  along  its  front, 
or  perhaps  with  one-half  the  cost,  leaving  the  opposite  lot  to  be 
assessed  for  the  other  half.  If  such  a  regulation  constitutes  the 
apportionment  of  a  tax,  it  must  be  supported,  when  properly  or- 
dered by  or  under  the  authority  of  the  legislature. 

But  it  has  been  denied,  on  what  seems  the  most  conclusive 
grounds,  that  this  is  permissible.  It  is  not  the  legitimate  taxation, 
because  it  is  lacking  in  one  of  its  indispensable  elements.  It  consid- 
ers each  lot  by  itself,  compelling  each  to  bear  the  burden  of  the  im- 
provement in  front  of  it,  without  reference  to  any  contribution  to 
be  made  to  the  improvement  by  any  other  property,  and  it  is  con- 
sequently without  any  apportionment.  From  accidental  circum- 
stances, the  major  part  of  the  cost  of  an  important  public  work 
may  be  expended  in  front  of  a  single  lot;   those  circumstances  not 


SPECIAL  ASSESSMENTS  220 

at  all  contributing  to  make  the  improvement  more  valuable  to  the 
lot  thus  specially  burdened,  perhaps  even  having  the  opposite  con- 
sequence. But,  whatever  might  be  the  result  in  particular  cases, 
the  fatal  vice  in  the  system  is  that  it  provides  for  no  taxing  dis- 
tricts whatever.  *  *  *  jj^  sidewalk  cases,  a  regulation  of  the 
kind  has  been  held  admissible,  but  it  has  been  justified  as  a  regu- 
lation of  police,  and  is  not  supported  on  the  taxing  power  exclu- 
sively." He  further  says  that  such  levies  are  not  taxes,  but  forced 
contributions,  and  that  a  local  tax  for  a  local  benefit  should  be  dis- 
tributed among  and  imposed  upon  all  equally  standing  in  a  like  re- 
lation. 

In  the  view  we  take  of  this  case,  the  decision  must  be  the  same 
whether  the  principal  question  at  issue  involves  a  lack  of  municipal 
power,  or  an  abuse  of  power  conferred.  The  city  council  could  not 
provide  for  the  construction  of  this  improvement  by  special  taxa- 
tion, and  then  ignore  the  very  principle  on  which  such  taxation  is 
based.  The  work  must  be  regarded  as  an  entirety,  and  its  cost  ap- 
portioned and  assessed,  on  some  principle  of  equality  and  uniform- 
ity, on  all  of  the  contiguous  property;  that  is,  on  all  the  lots  and 
parcels  of  land  in  the  taxing  district.  St.  John  v.  City  of  East  St. 
Louis,  136  111.  214,  27  N.  E.  543,  and  cases  cited. 

But  it  is  urged  that  the  general  law  for  the  incorporation  of  cities 
and  villages  confers  power  on  the  city  "to  construct  and  keep  in 
repair,  culverts,  drains,  sewers,  and  cess-pools  and  to  regulate  the 
use  thereof,"  and,  in  addition,  that  the  city  has  general  police  pow- 
ers which  enable  it  to  do  all  acts  necessary  for  the  preservation 
and  maintenance  of  the  public  healtii.  These  general  powers  can- 
not, however,  be  carried  into  effect  by  means  .of  special  taxation. 
In  City  of  Chicago  v.  Law,  144  111.  575,  33  N.  E.  855,  it  was  held 
the  city  had  no  power  to  raise  money  by  special  assessment  to  en- 
able it  to  carry  into  effect  its  general  powers  enumerated  in  the 
Municipal  Code,  and  that  the  power  of  taxation  by  special  assess- 
ment cannot  be  exercised  by  a  city  unless  it  has  been  expressly  con- 
ferred by  the  legislature.  No  one  will,  we  presume,  contend  that 
the  legislature  has  conferred  authority  on  the  city  to  enforce  its 
general  police  powers  by  special  taxation  or  by  special  assessment. 
If  it  be  said  that  the  city  may  com])el  the  lot  <i\viK-r,  at  his  own 
expense,  to  construct  sidewalks  in  front  of  his  premises,  and  thus 
a  local  improvement  may  be  constructed,  and  the  cost  so  apportion- 
ed that  each  property  owner  may  pay  for  the  sidewalk  in  front  of 
his  lot,  the  reply  is  that  express  authority  is,  by  statute,  conferred 
on  cities  and  villages  to  cause  sidewalks  to  be  so  constructed.  1 
Starr  &  C.  Ann.  St.  541,  542.  We  have  not  been  referred  to  any 
provision  of  the  statute,  and  we  know  of  none,  vesting  power  in 
cities  and  villages  to  cause  sewers  to  be  laiil  or  constructed,  and 
the  cost  of  constructing  the  same  in  front  of  each  lot  arbitrarily 


230  IMrROVEMENTS 

imposed  on  such  lot,  or  its  owner,  without  regard  to  frontage,  area, 
or  value. 

The  views  here  expressed  are  not  in  conflict  with  the  decision  of 
this  court  in  White  v.  People,  94  111.  604.  There  the  statute  ex- 
pressly authorizing  cities  to  compel  lot  owners  to  construct  side- 
walks in  front  of  their  lots  was  quoted,  and  the  constitutional  and 
statutory  provisions  relating  to  the  making  of  local  improvements 
by  special  assessments  or  by  special  taxation  of  contiguous  proper- 
ty, or  otherwise,  were  referred  to,  and  it  was  held  that  the  city  of 
Bloomington  had  the  power  to  assess  each  lot  with  the  whole  cost 
of  constructing  the  sidewalk  in  front  of  such  lot ;  in  other  words, 
the  statute  expressly  conferring  the  power  was  held  constitutional. 
Whether  the  legislature  may  or  may  not,  under  the  general  police 
power,  or  the  power  relating  to  local  improvements,  vest  the  corpo- 
rate authorities  of  cities  and  villages  with  power  to  require,  by  ordi- 
nance, that  each  lot  shall  be  connected  by  service  pipes  with  the 
sewer  and  water  mains  in  front  of  it,  and  that  the  entire  cost  of 
such  connection  shall  be  assessed  against  such  lot,  it  is  not  now  neces- 
sary to  decide;  but  it  seems  clear  that  such  power  has  not  been 
conferred  by  the  statute  under  which  this  ordinance  was  passed, 
and  the  improvement  ordered  and  made. 

Our  attention  is  called  to  Warren  v.  City  of  Chicago,  118  111.  329, 
11  N.  E.  218,  as  authority  in  support  of  the  validity  of  the  ordi- 
nance in  question.  In  that  case  a  special  assessment  was  levied 
on  each  lot  to  pay  the  cost  of  the  service  pipe  put  in  to  connect  it 
with  the  water  main.  The  assessment  on  lots  on  one  side  of  the 
street  was  more  than  on  the  other,  but,  as  the  appellant  who  ob- 
jected to  the  assessment  owned  an  equal  number  of  lots  on  each 
side  of  the  street,  the  question  here  considered  was  immaterial  to 
him,  and  apparently  was  not  raised ;  but  the  judgment  of  confirma- 
tion was  reversed  on  the  ground  that  the  ordinance  unjustly  dis- 
criminated against  the  appellant,  by  arbitrarily  dividing  his  lots  so 
that  he  was  required  to  pay  for  putting  in  a  greater  number  of 
service  pipes  in  proportion  to  frontage  than  the  other  property 
owners.  There  is  no  conflict  between  the  decision  in  that  case  and 
the  views  here  expressed.     *     *     *     Judgment  reversed. 


POLICE    POWERS    AXD    REGULATIONS  231 


POLICE  POWERS  AND  REGULATIONS 
I.  Extent  and  Limitation  of  Power  ^ 


COO:\IBS  V.   MacDOXALD. 
(Supreme  Court  of  Nebraska,  1895.     43  Neb.  632,  G2  N.  "W.  41.) 

Action  by  Henry  Coombs  and  others,  on  behalf  of  the  citizens 
of  Omaha  and  all  others  desiring  to  become  parties,  aijainst  Alex- 
ander MacDonald  and  others,  the  mayor  and  board  of  health  of  the 
city  of  Omaha,  and  the  city  council  of  the  city  of  Omaha.  Judg- 
ment for  complainants,  and  defendants  appeal. 

Post,  J.-  This  is  an  appeal  from  a  decree  of  the  district  court 
for  Douglas  county,  and  involves  the  contract  for  the  removal  of 
the  garbage  of  the  city  of  Omaha,  which  was  the  subject  of  the  con- 
troversy in  Smiley  v.  MacDonald,  42  Neb.  2,  60  N.  W.  355,  27  L. 
R.  A.  540,  47  Am.  St.  Rep.  684.  By  the  decree  appealed  from,  said 
contract,  as  well  as  the  ordinance  upon  which  it  depends,  was  ad- 
judged void,  and  the  defendant  MacDonald,  as  contractor,  perj>et- 
ually  enjoined  from  interfering  with  the  plaintiff,  also  engaged  in 
the  business  of  removing  garbage  from  said  city.  The  grounds  up- 
on which  said  contract  is  assailed  in  the  petition  of  plaintiffs  arc: 
First,  that  it  was  procured  through  bribery  and  other  unlawful  and 
corrupt  means  by  MacDonald  and  others  interested  with  him  ;  sec- 
ond, that,  in  so  far  as  it  purports  to  confer  ujwn  the  contractor  the 
exclusive  right  to  remove  the  garbage  of  the  city,  it  contravenes  tiie 
settled  rules  of  public  policy,  and  is  therefore  void.  The  district 
court  sustained  the  latter  contention  only.     *     *     * 

2.  Aside  from  the  allegation  of  fraud,  the  pleadings  herein  pre- 
sent no  question  which  was  not  considered  in  Smiley  v.  MacDon- 
ald. It  is  true  that,  in  the  case  named,  the  contract  was  assailed  on 
the  ground  that  the  right  conferred  thereby  was  an  exclusive  fran- 
chise, and  therefore  within  the  inhibition  contained  in  section  15, 
art.  3,  of  the  constitution  ;  while  in  the  case  before  us.  as  wc  have 
seen,  the  contention  is  that  said  contract  is  void  as  against  ptiblic 
policy.  Counsel  for  defendants  have  cited  numerous  cases  which 
assert  the  common-law  doctrine  that  monopolies  are  odious,  and 
therefore  illegal.  But  they  refer  without  exception  lo  franchises 
and  agreements  in  restraint  of  trade,  and  can  have  no  application 
to  mere  police  regulations,  designed  to  promote  the  health  or  mo- 

1  For  (llsciisslon  ff  jiriiKlplfs.  see  Coolcy,  Muu.  C'urp.  |  U5. 

2  I'art  of  the  opiuiou  In  omitted. 


232  POLICE    POWERS   AND    REGULATIONS 

rality  of  the  general  public.  Almost  every  phase  of  the  subject  was 
discussed  in  the  celebrated  Slaughter  House  Cases,  16  Wall.  36,  21 
L.  Ed.  394,  and  111  U.  S.  764,  4  Sup.  Ct.  652,  68  h.  Ed.  585,  to  which 
an  extended  reference  is  made  in  the  brief  of  defendants;  and  the 
doctrine  therein  announced  fully  sustains  our  conclusion  in  Smiley 
V.  MacDonald.  Indeed,  there  was  in  those  cases  no  diversity  of 
opinion  among  the  judges  with  respect  to  the  authority  of  a  state 
in  the  exercise  of  its  police  power  to  confer  upon  an  individual  or 
corporation  a  privilege  in  its  nature  exclusive.  On  the  other  hand, 
the  dissent  of  the  nonconcurring  judges  was  placed  upon  the  ground 
that  the  claim  of  a  sanitary  regulation  was  a  mere  pretense,  under 
which  the  state  of  Louisiana  had  attempted  to  invade  private  rights, 
and  to  deny  to  its  citizens  the  privilege  of  engaging  in  a  lawful 
business  in  no  wise  affecting  the  public  health  or  morals. 

As  intimated  in  Smiley  v.  MacDonald,  the  choice  between  san- 
itary measures  is  a  function  of  the  legislative  department  of  the 
government,  which  the  courts  will  not  assume  to  control.  The  test, 
as  therein  remarked,  where  a  particular  measure  is  called  in  ques- 
tion, is  whether  it  has  some  relation  to  the  public  welfare,  and 
whether  such  is  in  fact  the  end  sought  to  be  attained.  *  *  * 
Reversed. 


II.  Peace  and  Order  » 


CITY  OF  CHARITON  v.  SIMMONS. 

(Supreme  Court  of  Iowa,  1893.    87  Iowa,  226,  54  N.  W.  146.) 

The  defendants  were  arrested  upon  warrants  issued  by  the  may- 
or of  the  plaintiff  city  upon  informations  charging  them  with  vio- 
lating an  ordinance  of  the  city.  The  defendants  were  taken  before 
the  mayor,  and  entered  pleas  of  not  guilty.  A  trial  was  had,  and 
they  were  found  guilty,  and  judgment  was  entered  against  each  of 
them  in  the  sum  of  $10  and  costs.  They  appealed  to  the  district 
court,  where,  by  agreement,  the  pleas  of  not  guilty  were  with- 
drawn, and  the  defendants  demurred  to  the  informations.  The 
demurrer  was  sustained,  and  the  plaintiff  city  appeals. 

RoTHROCK,  J.  The  ordinance  under  which  the  arrests  were  made 
and  trial  had  was,  by  agreement,  made  part  of  the  record,  and  the 
demurrer  was  sustained  upon  the  ground  that  the  ordinance  was 
invalid.  The  ordinance  in  question,  so  far  as  it  pertains  to  the 
question  involved,  is  as  follows: 

"First.  That  the  collection  or  congregation  of  persons  upon  the 

3  For  discussion  of  principles,  see  Cooley,  Mun,  Corp.  §  98. 


PEACE   AND   ORDER  233 

Streets  or  sidewalks  of  the  city,  and  the  marching  or  movements 
of  persons  in  crowds  or  processions  thereon,  at  such  times  and 
places,  and  in  such  numbers  and  manner,  as  to  obstruct  or  impede 
public  travel  thereon,  or  to  injuriously  affect  or  interfere  with  the 
business  of  any  person  or  persons  on  such  streets,  is  hereby  prohib- 
ited; and  it  is  hereby  made  the  duty  of  the  mayor  and  city  marshal 
to  order  all  such  congregations  or  processions  of  persons  to  quietly 
disperse;  and  the  failure  or  refusal  of  any  person  or  persons  to 
promptly  obey  such  order  of  the  mayor  or  city  marshal  shall  be 
deemed  a  misdemeanor,  and,  upon  conviction  thereof,  such  per- 
son or  persons  shall  be  fined  in  any  sum  of  not  less  than  one  dol- 
lar and  not  more  than  fifty  dollars,  in  the  discretion  of  the  court, 
and  shall  be  imprisoned  in  the  county  jail  until  such  fines  and 
costs  of  prosecution  are  paid. 

"Second.  That  the  making  of  any  noise  upon  the  streets  or  side- 
walks of  the  city,  by  means  of  musical  instruments  or  otherwise, 
of  such  character  and  extent,  and  at  such  times  and  places,  as 
would  likely  cause  horses  and  teams  to  become  frightened  and  un- 
governable, or  of  such  character,  extent,  and  duration  as  to  annoy 
and  disturb  others,  is  hereby  prohibited;  and  it  is  hereby  made  the 
duty  of  the  mayor  and  city  marshal  to  order  any  person  or  persons 
making  such  noise  to  desist  therefrom,  and  the  failure  or  refusal 
of  such  person  or  persons  to  promptly  obey  such  order  of  the  may- 
or or  city  marshal  is  hereby  declared  to  be  a  misdemeanor,  and, 
upon  conviction  thereof,  such  person  or  persons  shall  be  punished 
by  a  fine  of  not  less  than  one  dollar  and  not  more  than  fifty  dol- 
lars for  each  offense,  in  the  discretion  of  the  court,  and  shall  be 
imprisoned  in  the  county  jail  until  such  fines  and  costs  of  prosecu- 
tion are  paid." 

The  grounds  of  demurrer  are  that  this  ordinance  is  unreasonable 
and  unjust,  and  prescribes  a  penalty,  not  for  the  violation  of  an 
ordinance,  but  for  the  refusal  to  obey  an  order  of  the  mayor  or 
city  marshal. 

It  is  imjjortant  to  first  determine  whether  the  acts  sought  to  be 
prohibited  by  the  ordinance  are  such  as  the  city  may  punish  by 
ordinance.  We  do  not  understand  counsel  to  claim  that  collec- 
tions and  congregations  of  "persons  upon  the  streets  or  sidewalks 
of  a  city,  and  the  marching  or  movements  of  persons  in  crowds  or 
processions  thereon,"  may  not,  under  certain  circumstances  and 
conditions,  be  prohibited.  It  is  not  the  orderly  procession,  with 
flags  and  banners,  musical  instruments,  and  all  the  accompani- 
ments, so  often  seen  upon  the  streets  of  our  cities  and  towns,  by 
our  civic  societies,  by  political  parties,  and  not  infrctjucntly  at 
funerals,  which  this  ordinance  prohibits.  These  processions  arc 
everywhere  not  only  permitted.  Init  encouraged.  But  suppo.sc 
these  processions  should  for  an  unreasonable  lime  obstruct  travel 
on  the  streets,  or  injuriously  affect  business,  and  be  carried  on  to 


234  POLICE    POWERS    AND    REGULATIONS 

such  an  extent  and  for  such  time  as  to  be  an  annoyance  and  a 
nuisance  to  the  pubHc,  there  can  be  no  question  that  the  city  may 
by  ordinance  prohil)it  them,  and  punish  the  persons  making  such 
an  unreasonable  disturbance.  If  the  ordinance  involved  in  this 
controversy  were  a  sweeping  prohibition  of  all  processions,  pa- 
rades, and  all  riding  and  driving  upon  the  public  streets  of  the 
city  with  bands  of  music,  flags,  torches,  and  other  paraphernalia 
of  the  modern  street  parade,  there  can  be  no  doubt  that  the  ordi- 
nance would  be  unreasonable,  unjust,  and  invalid.  Within  proper 
limits,  the  city  has  the  power  to  "prevent  riots,  noise,  disturbance, 
or  disorderly  assemblages,  *  *  *  ^^^^  ^q  preserve  peace  and 
order  therein."    Code,  §  456. 

We  do  not  understand  counsel  for  the  defendants  to  question 
these  general  propositions.  The  real  objection  which  they  urge 
to  the  ordinance  is  that  the  offense  is  made  to  depend  upon  the 
whim  or  caprice  of  the  mayor  or  city  marshal.  It  is  true  that 
under  the  ordinance,  when  persons  are  arrested  and  brought  for 
trial,  it  is  incumbent  on  the  prosecution  to  show  by  evidence  that 
the  order  to  desist  from  making  the  disturbance  was  given  by  the 
mayor  or  city  marshal.  But  it  is  also  incumbent  on  the  prosecu- 
tion to  prove  that  the  person  or  persons  charged  were  guilty  of 
doing  the  prohibited  acts.  This  is  the  gravamen  of  the  charge. 
Evidence  that  the  order  to  desist  was  given,  without  more,  would 
not  authorize  a  conviction. 

We  are  aware  of  no  case  determined  by  a  court  of  last  resort 
which  is  exactly  in  point  upon  the  question  under  consideration. 
In  Re  Frazee,  63  Mich.  396,  30  N.  W.  72,  6  Am.  St.  Rep.  310,  it  was 
determined  that  an  ordinance  absolutely  prohibiting  street  proces- 
sions with  musical  instruments,  banners,  torches,  etc.,  or  while  sing- 
ing or  shouting,  without  the  consent  of  the  mayor  first  obtained, 
was  unreasonable,  and  therefore  invalid.  In  that  case  the  offense 
consisted  in  failing  to  obtain  the  consent  of  the  mayor  before  the 
procession  or  performance  began.  In  the  case  at  bar  persons  are  not 
prohibited  from  putting  a  procession  in  motion.  The  prohibition 
extends  to  such  a  display  as  causes  a  public  annoyance.  So  in  the 
case  of  Mayor  of  Baltimore  v.  Radecke,  49  Md.  217,  33  Am.  Rep. 
239,  it  was  held  that  an  ordinance  which  provided  that  permits 
for  steam  boilers  and  engines  might  be  revoked  and  removed  aft- 
er six  months'  notice  from  the  mayor,  and  any  one  receiving  such 
notice,  who  refused  to  comply  therewith,  should  pay  a  fine,  was 
held  to  be  unreasonable.  This  was  an  unwarrantable  and  unrea- 
sonable interference  with  the  prosecution  of  a  legitimate  business, 
and  depended  upon  the  mere  caprice  of  the  mayor.  In  the  case 
at  bar,  as  we  have  said,  the  offense  consists  in  doing  acts  which  are 
everywhere  regarded  as  subject  to  municipal  control. 

Other  cases  are  cited  by  counsel,  but  it  appears  to  us  that  they 
are  clearly  distinguishable  from  the  case  at  bar.     On  the  other 


SANITATION  23  O 

hand,  in  the  case  of  Com.  v.  Davis,  140  Mass.  485,  4  N.  E.  T'77 ,  an 
ordinance  providing  that  "no  persons  shall,  except  by  the  permis- 
sion of  the  said  committee,  deliver  a  sermon,  lecture,  address,  or 
discourse  on  the  common  or  public  grounds,"  it  was  held  that  the 
ordinance  was  not  unreasonable  and  invalid.  The  committee  re- 
ferred to  in  the  ordinance  was  the  committee  of  the  city  council 
having  charge  of  the  public  grounds.  See,  also,  Com.  v.  Plaisted, 
148  Mass.  375,  19  N.  E.  224,  2  L.  R.  A.  142,  12  Am.  St.  Rep.  566. 

In  our  opinion,  the  ordinance  in  question  is  not  unreasonable.  It 
is  applicable  to  all  persons  who,  by  violating  its  provisions,  sub- 
ject themselves  to  its  penalties ;  and  the  mere  fact  that  no  arrest 
can  be  made  unless  the  mayor  or  marshal  shall  order  the  offender 
to  cease  from  violating  the  ordinance,  instead  of  being  oppressive 
on  the  citizen,  operates  as  a  warning  to  him  to  desist  from  a  viola- 
tion of  the  ordinances.  He  should  not  be  heard  to  complain  of 
this  feature  of  the  ordinance.  The  order  of  the  district  court  sus- 
taining the  demurrer  to  the  information  is  reversed. 


III.  Sanitation* 


LAUGEL  v.  CITY  OF  BUSHNELL. 
(Supreme  Court  of  Illinois,  1902.    197  111.  20,  G3  N.  E.  lOfSO.  ns  L.  K.  A.  200.) 

Action  by  the  City  of  Bushnell  against  J.  E.  Laugel  for  violation 
of  a  city  ordinance.  Judgment  for  plaintiff  having  boon  altirmod 
by  the  appellate  court  (96  111.  App.  618),  the  defendant  brings 
error. 

BoGGS,  J.5  *  *  *  'file  ordinance  said  to  liavc  bciii  violated 
is  as  follows:  "Be  it  ordained  by  the  city  council  of  the  city  of 
Bushnell:  Section  1.  That  any  place  in  said  city  of  Bushnell  where 
hop  ale,  hop  mead,  malt  mead,  cider  or  other  like  drinks  are  kept 
for  sale,  are  sold  or  given  away,  either  directly  or  indirectly,  in 
any  quantity  whatever,  is  hereby  declared  to  be  a  nuisance,  and 
the  owner,  keeper,  lessee  or  occupant  of  the  premises  who  shall 
neglect  or  refuse  to  abate  such  nuisance  after  being  notified  so  to 
do  by  the  city  marshal  of  said  city,  shall,  on  conviction  thereof. 
forfeit  and  pay  to  said  city  a  sum  not  less  than  ten  dollars  nor 
more  than  one  hundred  dollars  for  each  and  every  day  he  shall 
refuse  or  neglect  to  remove  or  abate  the  same."  In  ihc  circmt 
court  the  parties  waived  a  jury,  and   submitted  the  cause  to  the 

*  For  (llscnsHJon  of  priTirlpIfH.  .^jof  foflcy.  Mini.  (N.rit.  I  '.K>. 

6  Part  of  IlK'  oi.iiilon  Is  omitted  uud  Ihe  BLjjtCuiont  Ih  rowrlUcn. 


236  POLICE    POWERS    AND    REGULATIONS 

court  for  decision.  When  the  ordinance  was  offered  in  evidence 
counsel  for  the  plaintiff  in  error  objected  to  the  introduction  there- 
of, assigning  as  the  ground  of  objection  "that  the  city  had  no 
power  to  pass  it."  But  the  court  overruled  the  objection,  and  the 
plaintiff'  in  error  excepted.  This  ruling,  and  the  action  of  the 
court  in  refusing  to  hold  as  correct  propositions  of  law  Nos.  1, 
2,  and  3,  presented  in  behalf  of  the  plaintiff  in  error  to  be  held  as 
the  law  of  the  case,  constitute  the  chief  grounds  of  complaint  in 
this  court,  and  together  raise  the  same  question. 

Said  propositions  are  as  follows:  (1)  "The  ordinance  offered 
in  evidence  is  void."  (Refused.)  (2)  "The  city  council  has  no 
power  to  declare  by  ordinance  that  where  hop  ale,  hop  mead,  malt 
mead,  cider,  or  other  like  drinks  are  kept  for  sale,  are  sold  or 
given  away,  either  directly  or  indirectly,  in  any  quantity  whatever, 
is  a  public  nuisance."  (Refused.)  (3)  "No  city  council  of  any 
city  in  this  state  organized  under  the  general  law  has  the  power  or 
authority  to  declare,  by  ordinance  or  otherwise,  that  where  hop 
ale,  hop  mead,  malt  mead,  cider,  or  other  like  drinks  are  kept  for 
sale,  are  sold,  or  given  away,  either  directly  or  indirectly,  in  any 
quantity  whatever,  to  be  a  public  nuisance,  regardless  of  the  char- 
acter of  such  drinks  or  the  ingredients  thereof."    (Refused.) 

The  argument  of  counsel  for  plaintiff  in  error  is  correct  that  the 
authority  which  the  governing  bodies  of  cities  and  villages  may 
exercise  by  virtue  of  subdivision  75  of  section  62  of  article  5  of 
chapter  24  of  the  Revised  Statutes,  entitled  "Cities,"  etc.,  "to  de- 
clare what  shall  be  a  nuisance  and  to  abate  the  same  and  to  im- 
pose fines  upon  persons  who  may  continue  or  suffer  nuisances  to 
exist,"  is  not  as  broad  and  unrestricted  as  the  language  of  the 
grant  of  power  would  indicate.  If  interpreted  according  to  its 
literal  wording,  the  act  invests  the  councils  of  cities  and  the  trus- 
tees of  villages  with  ample  power  to  conclusively  declare  any  and 
every  trade,  occupation,  calling,  or  thing  to  be  a  nuisance  and  to 
abate  it  as  such.  The  possession  of  such  unlimited  power  would 
subordinate  every  business  interest,  however  lawful,  to  the  uncon- 
trolled will  of  municipal  authorities,  and  its  exercise  would  result 
in  unjustifiable  invasion  of  private  right. 

We  do  not  conceive  it  to  be  the  law  that  city  councils  or  boards 
of  village  trustees  may  conclusively  declare  that  to  be  a  nuisance 
which  a  court,  acting  upon  its  experience  and  knowledge  of  hu- 
man affairs,  would  say  is  not  so  in  fact.  That  which,  however,  is 
a  nuisance  because  of  its  nature  or  inherent  qualities,  or  because 
it  is  forbidden  by  law,  may  be  denounced  or  declared  a  nuisance 
by  an  ordinance,  and  such  denunciation  will  be  deemed  conclusive. 
There  are  other  things,  trades,  occupations,  and  callings  which, 
because  of  their  nature  or  inherent  qualities,  may  or  may  not  be 
nuisances  in  fact.  As  to  this  class  we  said  in  North  Chicago  City 
Ry.  Co.  V.  Town  of  Lake  View,  105  111.  207,  44  Am.  Rep.  788,  "that, 


SANITATION  237 

if  it  be  doubtful  whether  a  thing  is  in  its  nature  a  nuisance, — that 
is,  whether  it  is  in  fact  a  nuisance, — the  determination  of  the  ques- 
tion requiring  judgment  and  discretion  on  the  part  of  the  village 
authorities  in  exercising  their  legislative  functions  under  the  pow- 
er delegated  by  the  enactment  we  are  considering,  the  action  of 
such  authorities  should  be  deemed  conclusive  of  the  question." 

It  is  thought  the  doctrine  thus  announced  as  to  the  power  of 
city  councils  is  in  conflict  with  the  holdings  of  this  court  in  the 
later  case  of  Village  of  Des  Plaines  v.  Poyer,  123  111.  348,  14  N. 
E.  677,  5  Am.  St.  Rep.  524,  and  should  therefore  be  regarded  as 
overruled.  But  in  the  still  later  case  of  Harmison  v.  City  of  Lewis- 
town,  153  111.  313,  38  N.  E.  628,  46  Am.  St.  Rep.  893,  the  doctrine 
of  the  case  of  North  Chicago  City  Ry.  Co.  v.  Town  of  Lake  View 
w^as  reaffirmed.  In  the  Lake  View  Case,  we  held  that  the  city 
council  or  board  of  trustees  were  not  clothed  by  the  enactment  in 
question  with  power  to  declare  that  a  nuisance  which  is  not  so  in 
fact,  and  we  further  said:  "There  are  some  things  which  are  in 
their  nature  nuisances  and  which  the  law  recognizes  as  such. 
There  are  others  which  may  or  may  not  be,  their  character  in 
this  respect  depending  on  circumstances,  and  in  the  latter  in- 
stance it  is  manifestly  beyond  the  power  of  the  village  to  declare 
in  advance  that  those  things  are  a  nuisance.  The  question  when  a 
thing  may  or  may  not  be  a  nuisance  must  be  settled  as  one  of 
fact,  and  not  of  law." 

The  supposed  conflict  in  the  expressions  of  the  court  in  the  two 
cases  is  apparent  only.  It  is  true  that  in  the  Lake  View  Case  it 
was  said  that  the  question  when  a  thing  may  or  may  not  be  a 
nuisance  must  be  settled  as  one  of  fact,  and  not  of  law,  while  in 
the  former  case  it  was  said:  "In  doubtful  cases,  wlicrc  things 
may  or  may  not  be  a  nuisance,  depending  upon  a  variety  of  cir- 
cumstances requiring  judgment  and  discretion  on  the  part  of  the 
town  authorities  in  exercising  their  legislative  functions  under 
a  general  delegation  of  power  like  the  one  we  are  considering, 
their  action  under  such  circumstances  Wf)uld  l)c  conclusive  of  the 
question."  In  the  Lake  View  Case  we  also  said:  "There  are 
some  things  which  arc  in  their  nature  nuisances,  and  which  the 
law  recognizes  as  such.  There  arc  others  which  may  or  may  not 
be  so,  their  character  in  this  respect  depending,"  not  up<»n  their 
nature  or  inherent  cjualities,  but,  to  c|Uotc  again,  "upon  circum- 
stances." It  was  this  latter  class  which  were  not  nuisances  in 
their  nature,  but  which  might  become  so  by  reason  of  exterior 
circumstances,  such  as  location,  surroundings,  manner  of  conduct- 
ing the  business,  etc..  to  which  we  referred  in  the  latter  case,  and 
declared  could  not  be  conclusively  denounced  as  nuisances  by  vil- 
lage or  city  authorities,  but  that  the  question  as  to  them  should  be 
determined  as  one  of  fact,  but  not  of  law. 


2o8  POLICE    POWERS    AND    UEGULATIONS 

As  to  things,  trades,  occupations,  or  establishments  falling 
within  tlic  other  class, — that  is,  those  which  in  their  nature  or  in- 
herent qualities  may  or  may  not  be  nuisances, — the  expression 
used  in  the  Lake  View  Case  is  not  inconsistent  with  the  doctrine 
of  the  former  case  that  such  things  may  be  conclusively  denounc- 
ed as  nuisances.  Nuisances  may  thus  be  classified:  First,  those 
which  in  their  nature  are  nuisances  per  se  or  are  so  denounced  by 
the  common  law  or  by  statute ;  second,  those  which  in  their  na- 
ture are  not  nuisances,  but  may  become  so  by  reason  of  their  lo- 
cality, surroundings,  or  the  manner  in  which  they  may  be  con- 
ducted, managed,  etc. ;  third,  those  which  in  their  nature  may  be 
nuisances,  but  as  to  which  there  may  be  honest  differences  of 
opinion  in  impartial  minds.  The  power  granted  by  the  statute  to 
the  governing  bodies  of  municipal  corporations  to  declare  what 
shall  be  nuisances,  and  to  abate  the  same,  etc.,  authorizes  such 
bodies  to  conclusively  denounce  those  things  falling  within  the 
first  and  third  of  these  classes  to  be  nuisances,  but  as  to  those 
things  falling  within  the  second  class  the  power  possessed  is 
only  to  declare  such  of  them  to  be  nuisances  as  are  in  fact  so. 
With  these  distinctions  kept  clearly  in  view,  no  difficulty  will  be 
found  in  harmonizing  the  decisions  in  question. 

Nor  is  the  view  that  city  councils  and  village  trustees  have  pow- 
er to  declare  that  a  nuisance  as  to  which  it  may  be  doubtful  wheth- 
er it  is  or  not  a  nuisance  at  all  inconsistent  with  the  declaration  in 
Emmons  v.  City  of  Lewistown,  132  111.  380,  24  N.  E.  58,  8  L.  R. 
A.  328,  22  Am.  St.  Rep.  540,  that  to  concede  that  the  power  of  a 
municipal  corporation  to  pass  an  ordinance  is  doubtful  is  to  deny 
the  power.  In  that  case  the  question  was  presented  whether  the 
city  of  Lewistown  had  power  to  adopt  an  Ordinance  to  license,  tax, 
or  regulate  the  canvassing  for  books  and  publications  in  the  city. 
It  was  contended  on  behalf  of  the  city  that  subdivision  41  of  sec- 
tion 62  of  chapter  24  of  the  Revised  Statutes,  entitled  "Cities," 
etc.,  invested  the  city  council  with  power  to  adopt  the  ordinance. 
Said  subdivision  41  does  not  expressly  grant  power  to  license,  tax, 
and  regulate  persons  engaged  in  canvassing  for  books  or  publica- 
tions, but  does  authorize  such  course  to  be  pursued  as  to  hawkers 
and  peddlers.  It  was  in  connection  with  the  discussion  of  the 
question  whether  persons  engaged  in  canvassing  for  books  and 
other  publications  were  included  in  the  class  of  persons  denom- 
inated "hawkers  and  peddlers"  in  the  ordinance  that  the  expression 
in  question  was  used.  The  doubt  referred  to  was  as  to  the  power 
of  the  city  council  to  pass  any  ordinance  in  any  wise  restricting 
or  regulating  the  canvassing  for  the  sale  of  books  and  other  pub- 
lications within  the  city,  and  the  court  correctly  remarked  that 
to  concede  that  it  was  doubtful  whether  the  legislature  had  grant- 
ed such  power  was  to  deny  the  existence  of  the  power.  In  the 
case  at  bar  the  grant  of  legislative  power  to  declare  what  shall 


SAFETY  2o9 

be  a  nuisance  and  to  abate  it  is  expressly  given,  and  no  doubt  ex- 
ists as  to  the  power  of  the  city  council  over  nuisances.  The  doubt 
is  not  as  to  the  power  possessed  by  the  council  to  control  nui- 
sances, but  as  to  the  nature  or  inherent  qualities  of  the  thing,  call- 
ing, or  occupation  denounced  as  a  nuisance.  In  the  Emmons  Case 
the  doubt  was  whether  there  was  any  power  in  the  city  council 
to  control  the  business  of  canvassing  for  books  and  publications, 
etc. 

Section  7  of  chapter  43  of  the  Revised  Statutes,  entitled  "Dram- 
shops," declares  all  places  where  intoxicating  liquors  are  sold  in 
violation  of  the  act  shall  be  taken  and  held  to  be  common  nuisan- 
■ces.  In  Hewitt  v.  People,  186  111.  336,  57  N.  E.  1077,  we  affirmed 
d  conviction  of  the  violation  of  the  dramshop  act  in  the  selling  of 
cider,  it  appearing  from  the  evidence  that  the  cider  sold  was  intox- 
icating in  character.  In  the  case  at  bar  the  evidence  tended  to  show 
that  hop  ale  was  an  intoxicating  drink.  Clearly,  we  cannot  as- 
sume to  say  that  it  is  not  at  least  doubtful  whether  cider,  hop  ale, 
hop  and  malt  mead  are  not  intoxicating.  The  city  council,  in  the 
exercise  of  their  judgment  and  discretion  in  disciiarging  their  leg- 
islative function,  determined  that  places  where  hop  ale,  hop  and 
malt  mead,  or  cider  was  sold  were  nuisances,  and,  that  determina- 
tion not  being  free  from  doubt,  the  courts  must  refrain  from  ile- 
claring  the  ordinance  void  and  ineffectual.  The  court  did  not  err 
in  admitting  the  ordinance  in  evidence  or  in  ruling  on  the  proposi- 
tions of  law.  The  admission  of  testimony  bearing  upon  the  ques- 
tion whether  hop  ale  contained  alcohol,  and  would  produce  intox- 
ication, cannot  afford  any  reason  for  reversing  the  judgment.  The 
declaration  of  the  city  council  that  a  place  where  such  ale  is  sold 
shall  be  regarded  as  a  nuisance  is,  as  we  have  seen,  conclusive; 
hence  proof  as  to  the  intoxicating  character  of  the  ale.  though  un- 
necessary to  the  case  for  the  city,  could  not  have  i)rcjudiccd  the 
cause  of  the  plaintiff  in  error.     *     *     *     Affirmed. 


IV.  Safety  • 


ST.^TE  V.  JOHNSON. 
(Supremo  Court  of  Ndrtli  Caroliim,  1S!H.     1 1  I  .V.  C  RIO.  10  S.  E.  r.OO.) 

Defendant  Johnson  was  occupying  and  controlling  a  two-story 
wooden  frame  house,  with  brick  basement,  situated  in  the  city  of 
Winston,  within  l.fXX)  feet  of  the  Court  sf|uarc ;  and  al)f)ut  tlie 
9th  of  December,   1S92,  the  house  was  partially  destroyed  by  fire. 

«  I'"or  (IIscuhkIou  of  prlnclpk-s,  see  Cooley,  Alim.  Corit.  i  100. 


240  POLICE    POWERS   AND    REGULATIONS 

On  the  6th  of  January,  1893,  the  defendant  made  a  contract  with 
certain  builders  to  have  the  house  repaired  at  the  cost  of  $490. 
The  original  cost  of  the  building,  including  brick  basement,  was 
about  $2,000.  Shortly  after  work  began  under  said  contract,  the 
defendant  was  arrested,  tried  and  convicted  before  the  mayor,  and 
on  appeal  to  the  superior  court  the  case  was  dismissed,  on  motion 
to  quash  the  warrant.  About  the  17th  of  March,  1893,  the  defend- 
ant, without  the  consent  of  the  board  of  aldermen,  placed  said 
contractors  at  work  again  on  the  building;  and  he  was  again 
arrested,  and  tried,  convicted  and  fined. 

The  following  ordinances  relating  to  this  matter  were  adopted 
by  said  board :  "That  for  the  protection  of  the  city  against  fire  the 
following  ordinance  be  enacted  under  chapter  5,  as  sections  36  and 
Z7  of  said  chapter  5  of  the  ordinances  of  the  city :  Sec.  36.  That 
the  fire  limit  shall  be  the  territory  from  the  center  of  Court  square 
extending  one  thousand  feet  in  each  direction ;  that  it  shall  be  un- 
lawful without  the  consent  of  the  board  for  any  person  or  corpo- 
ration to  erect,  alter  or  repair  any  wooden  building  within  said 
fire  limit,  and  any  person  or  corporation  violating  the  same  shall 
be  fined  fifty  dollars ;  that  for  each  day  such  person  or  corpora- 
tion continues  to  erect,  alter  or  repair  such  building,  it  shall  con- 
stitute a  separate  violation  of  the  ordinance,"  etc.  "Sec.  Z7 .  That 
any  person  who  shall  assist  in  constructing  or  repairing  any  build- 
ing, prohibited  in  above  section,  shall  be  fined,"  etc.  There  were 
other  sections  of  the  ordinances,  prohibiting  the  erection  of  wood- 
en buildings  in  the  business  portion  of  the  city  without  the  writ- 
ten consent  of  the  aldermen,  etc.,  and  the  fire  limit — 1,000  feet  from 
the  Court  square — was  established,  etc. 

The  defendant  appealed  from  the  judgment.'^ 

Avery,  J.  Municipal  corporations  are  the  creatures  of  the  legis- 
lature, and  their  powers  may  be  curtailed,  enlarged,  or  withdrawn 
at  the  will  of  the  creator,  whose  control  over  them  is  limited  only 
by  the  restriction  that  no  statute  will  be  enforced  which  impairs 
the  obligation  of  a  contract,  interferes  with  vested  rights,  or  is  in 
conflict  with  any  provision  of  the  organic  law  of  the  state  or  na- 
tion. It  is  too  well  settled  to  recapitulate,  or  even  justify  discus- 
sion, that  towns, — certainly,  by  virtue  of  an  express  grant  of  au- 
thority to  do  so,  and,  according  to  most  authorities,  by  implica- 
tion arising  out  of  the  general  welfare  clause, — if  there  is  no  gen- 
eral law  to  the  contrary,  are  empowered  to  prescribe  a  fire  limit, 
and  forbid  the  erection  of  wooden  buildings  within  such  bounds 
as  they  may,  by  ordinance,  prescribe.  15  Am.  &  Eng.  Enc.  Law, 
1170;  1  Dill.  Mun.  Corp.  §  405;  Horr  &  B.  Mun.  Ord.  §  232; 
Klingler  v.  Bickel,  117  Pa.  326,  11  Atl.  555.  The  weight  of  author- 
ity seems  to  be  also  in  favor  of  the  proposition  that  the  legisla- 

t  The  statement  of  facts  is  rewritten. 


SAFETY  241 

ture  has  the  power  to  prevent  the  erection  of  wooden  buildings  in 
such  corporations,  or  to  delegate  to  the  municipalities,  the  author- 
ity to  do  so,  even  where  the  enforcement  of  the  law  or  ordinance 
causes  a  suspension  of  work  in  the  erection  of  structures  of  this 
kind  by  persons  who  are  carrying  out  contracts  for  their  erection 
made  previously  with  the  owners  of  the  land.  Cordes  v.  Miller. 
39  Mich.  581,  33  Am.  Rep.  430;  Ex  parte  Fiske.  72  Cal.  125.  13 
Pac.  310.  Persons,  in  contemplation  of  law,  contract  with  refer- 
ence to  the  existence  and  possible  exercise  of  this  authority,  when 
it  is  vested  in  the  municipality.  Citv  of  Salem  v.  Maynes.  123 
Mass.  374;  Munn  v.  Illinois,  94  U.  s!  113,  24  L.  Ed.  77;  Wood- 
lawn  Cemetery  v.  Everett,  118  Mass.  354;  Com.  v.  Intoxicating 
Liquors.  115  Mass.  153;  Knoxville  Corp.  v.  Bird,  12  Lea  ( Tenn  ) 
121,  49  Am.  Rep.  326. 

Upon  this  same  principle,  all  agreements  for  building  are  deem- 
ed to  be  entered  into  in  view  of  the  contingency  that  such  power 
may  be  granted  by  the  legislature,  when  it  has  not  already  been 
delegated,  while  the  contract  is  still  in  fieri.  15  Am.  &  Eng.  Enc. 
Law,  1171.  While  it  might  be  unreasonable  to  prohibit  even  the 
slightest  repairs  to  wooden  buildings  standing  within  tlie  fire 
limits  prior  to  the  passage  of  a  statute  or  ordinance  establishing 
such  limits,  the  power  to  prevent  repairs  is  delegated,  and  presum- 
ably exercised,  for  the  protection  of  property;  and.  where  a  wood- 
en structure  within  the  bounds  is  partially  destroved  bv  a  fire  al- 
ready, it  is  not  unreasonable  to  require  a  new  roof  to  be  made  of 
material  less  liable  to  combustion,  or  to  forbid  the  repairs  alto- 
gether when  the  damage  to  the  building  is  serious,  and  to  that  end 
to  compel  the  owners  to  give  notice  to  the  town  authorities  of 
their  purpose  to  repair,  and  of  the  character  of  the  contemplated 
work.  Village  of  Louisville  v.  Webster,  108  111.  414.  We  arc 
aware  that  there  is  much  conflict  of  authority  as  to  the  reason- 
ableness of  ordinances  forbidding  all  repairs,  or  the  enforcement 
of  them  so  as  to  prevent  re])lacing  roofs  with  the  same  material 
used  before  their  destruction.  TTorr  &  B.  Man.  Ord.  p.  214.  §  233; 
Brady  v.  Insurance  Co.,  11  Mich.  425;  Ex  parte  Fiske.  supra. 

But  in  this  particular  instance  the  legislature  has  granted  a 
municijjality  the  power  to  supervise,  or  prevent  the  replacing  of 
the  roof  with  another  of  shingles,  instead  of  constructing  one  of 
material  less  liable  to  destruction  ;  and  we  are  not  prcf)ared  to  ques- 
tion its  authority  to  do  so,  since,  upon  the  principle  already  an 
nounced,  persons  contracting  with  reference  to  !iie  chances  of  the 
granting  as  well  as  the  exercise  of  such  powers  acquire  no  vested 
rights,  and  afterwards  voluntarily  incurring  all  of  the  risks  incident 
to  their  situation,  have  no  reason  to  com])lain  of  the  loss  when  it 
befalls  them.  The  court  imposed  a  fine  of  $50.  There  was  no 
attcmj)t  to  cnff)rce  the  portion  of  the  ordinance  impoving  a  pcn- 
CooLEY  Cask.s  Mun.C. — 10 


242  POLICE    POWERS    AND    REGULATIONS 

alty  of  $10  for  every  hour  the  building  was  permitted  to  remain. 
There  may  be  more  doubt  as  to  the  reasonableness  of  that  provi- 
sion.   Com.  V.  Wilkins,  121  Mass.  356. 

But  it  is  not  necessary  to  pass  upon  a  question  not  fairly  rais- 
ed, and  we  forbear  to  do  so.    The  judgment  is  affirmed. 


COMMONWEALTH  v.  CROWNINSHIELD. 

(Supreme  Judicial  Court  of  Massachusetts,  1905.     187  Mass.   221,  72  N.   E. 

963,  68  L.  R.  A.  245.) 

One  Crowninshield  was  convicted  of  violating  a  rule  of  the 
board  of  Park  Commissioners,  and  brings  exceptions. 

Lathrop,  J.  The  defendant  was  found  guilty  of  violating  a  rule 
of  the  board  of  park  commissioners  of  the  city  of  Boston,  which 
provides  that  "no  person  shall  ride  or  drive  in  Commonwealth 
avenue  at  a  rate  of  speed  exceeding  eight  miles  an  hour."  At  the 
trial  it  appeared  that  the  defendant,  on  November  13,  1903,  was 
running  an  automobile  at  a  rate  of  speed  exceeding  eight  miles  an 
hour  in  Commonwealth  avenue  between  Exeter  street  and  Fair- 
field street.  Many  objections  were  raised  in  the  court  below,  and 
come  before  us  on  the  defendant's  exceptions.  So  much  of  Com- 
monwealth avenue  as  lies  between  Arlington  street  and  the  inter- 
section of  the  avenue  with  Beacon  street  was  taken  for  park  pur- 
poses by  the  board  of  park  commissioners  on  June  29,  1894. 

1.  It  is  contended  that  the  board  of  park  commissioners  never 
acquired  any  jurisdiction  over  the  part  of  Commonwealth  avenue 
where  the  offense  was  committed.  This  depends  on  the  construc- 
tion to  be  given  to  St.  1893,  p.  934,  c.  300,  §  1.  This  section  is  as 
follows:  "Any  board  of  park  commissioners  constituted  under  the 
authority  of  chapter  one  hundred  and  fifty-four  of  the  Acts  of  the 
year  eighteen  hundred  and  eighty-two  as  amended  by  chapter  two 
hundred  and  forty  of  the  Acts  of  the  year  eighteen  hundred  and 
ninety,  or  of  any  special  acts,  shall  have  power  to  connect  any 
public  park,  boulevard  or  driveway  under  its  control,  with  any 
part  of  any  city  or  town  in  this  commonwealth  wherein  it  has 
jurisdiction,  by  selecting  and  taking  any  connecting  street  or 
streets,  or  part  thereof,  leading  to  such  park,  and  shall  also  have 
power  to  accept  and  add  to  any  such  park  any  street  or  part  thereof 
which  adjoins  and  runs  parallel  with  any  boundary  line  of  the 
same:  provided,  that  the  consent  of  the  public  authorities  having 
control  of  any  such  street  or  streets  so  far  as  selected  and  taken, 
and  also  the  consent  in  writing  of  the  owners  of  a  majority  of  the 
frontage  of  the  lots  and  lands  abutting  on  such  street  or  streets  so 
far  as  taken,  shall  be  first  obtained."  It  appears  that  the  public 
authorities  having  control  of  Commonwealth  avenue  assented  to 


SAFETY  243 

the  selection  and  taking  of  the  portion  of  the  avenue  taken,  and  that 
the  consent  in  writing  of  the  owners  of  a  majority  of  the  frontage 
of  the  lots  and  lands  abutting  on  the  avenue  has  been  obtained.  ^^ 

The  contention  of  the  defendant  is  that  as  the  board  of  park 
commissioners  has  no  control  over  the  Public  Garden,  which  abuts 
on  Arlington  street  for  the  entire  length  of  that  street,  it  could  not 
take  the  avenue  for  the  purpose  of  connecting  the  Public  Garden 
with  the  Back  Bay  Fens.  But  we  are  of  opinion  that  the  lan- 
guage of  the  statute  is  broader  than  this.  The  board  of  park  com- 
missioners is  expressly  given  the  power  "to  connect  any  public 
park,  boulevard  or  driveway  under  its  control  [in  this  case  the 
Back  Bay  Fens]  with  any  part  of  any  city  or  town  in  this  com- 
monwealth wherein  it  has  jurisdiction,  by  selecting  and  taking  any 
connecting  street  or  streets,  or  part  thereof,  leading  to  such  park." 
The  object  of  the  statute  was  to  give  a  board  of  park  commis- 
sioners having  jurisdiction  of  a  park  in  any  city  or  town  to  take, 
under  the  conditions  above  set  forth,  any  street  connecting  with 
that  park  in  the  same  city  or  town,  and  was  not  limited  to  the 
taking  of  a  street  connecting  two  parks.  The  view  which  we  have 
adopted  is  in  accordance  with  that  taken  by  the  commissioners  on 
the  Revised  Laws,  and  adopted  by  the  Legislature:  "Such  boards 
may  connect  any  public  park,  boulevard  or  driveway,  under  its 
control,  with  any  part  of  a  city  or  town  for  which  they  are  ap- 
pointed by  taking  any  connecting  streets  or  part  thereof  leading 
to  such  park,"  etc.  Report  of  Commissioners,  c.  28,  §  3;  Rev. 
Laws,  c.  28,  §  3. 

2.  It  is  next  contended  that,  if  the  park  commissioners  had  juris- 
diction  over   that   part  of   Commonwealth   avenue    where  the   of- 
fense  was   committed,    their   jurisdiction    was    limited    to   acts   of 
maintenance  and  management,  and  did  not  embrace  the  [)owcr  to 
pass  the  rule  in  question.     But  section  3.  St.   1893.  p.  935,  c.  300. 
reads  as  follows:    "Such  boards  of  park  commissioners  shall  have 
the  same  power  and  control  over  the  streets  or  parts  of  streets 
taken  under  this  act  as  arc  or  may  be  by  law  vested  in  them  con- 
cerning the  parks,  boulevards  or  driveways  under  their  c(»ntrol." 
To  ascertain  the  power  of  the  board,  we  turn  to  St.  18/5.  p.  77^,  c. 
185,  §  3,  which  not  only  gave  the  board  power  to  take  land  for 
l)arks,  and  "to  lay  out,  improve,  govern  and   regulate"  the  same, 
but  also  "to  make  rules  for  the  use  and  government  thereof,  and 
for  breaches  of  such  rules  to  affix  penalties  not  exceeding  twenty 
dfjliars  ff;r  one  offense."     Power  is  also  given  to  e!npl(»y  a  police 
force.     We  cannot  doubt  the  power  of  the  board  of  park  commis- 
sioners, under  the  statutes  cited,  to  regulate  the  s|)cc(l  at  which  a 
I)erson  shall  "ride  or  drive"  in  a  park  (»r  in  a  street  which  is  with- 
in the  jurisrliction  of  such  commissioners.     In  Com.  v.  Abrahams. 
156  Mass.  57,  30  N.  E.  79,  where  a  rule  made  by  the  park  com 
missioners  under  St.  1875,  p.  778,  c.  185,  §  3,  was  held  to  be  valid, 


244  POLICE    POWERS   AND    REGULATIONS 

it  was  said  in  the  opinion  of  the  court:  "The  parks  of  Boston  are 
designed  for  the  use  of  the  public  generally,  and  whether  any 
park  or  a  part  of  any  park  can  be  temporarily  set  aside  for  the  use 
of  a  portion  of  the  public  is  for  the  park  commissioners  to  decide 
in  the  exercise  of  their  discretion."  The  general  question  which 
arises  where  a  by-law  or  ordinance  of  a  city,  or  a  rule  of  a  board  of 
park  commissioners  is  concerned  is  whether  it  is  authorized  by  a 
statute,  and  whether  it  is  reasonable.  See  Com.  v.  Stodder,  2 
Cush.  562,  570,  48  i\m.  Dec.  679.  The  rule  in  question  was  author- 
ized by  statute,  and  was  reasonable.  No  question  has  been  raised 
as  to  the  power  of  the  Legislature  to  authorize  the  board  of  park 
commissioners  to  make  the  rule  relied  upon,  and  it  is  evident  that 
such  contention,  if  made,  could  not  prevail.  Brodbine  v.  Revere, 
182  Mass.  598,  602,  66  N.  E.  607. 

3.  The  next  contention  is  that,  if  the  board  of  park  commis- 
sioners had  power  to  pass  rules,  such  power  was  taken  away  by 
subsequent  legislation.  The  argument  is  that,  because  St.  1902, 
p.  235,  c.  315,  regulated  the  speed  of  automobiles  throughout  the 
state,  it  abrogated  all  park  regulations.  It  is  clear,  however,  that 
this  statute  was  not  intended  to  apply  to  park  regulations.  It 
refers  to  the  speed  of  automobiles  on  public  highways,  streets, 
and  ways.  This  act  was  repealed  by  St.  1903,  p.  512,  c.  473,  §  15, 
which  contains  a  clause  that  "nothing  herein  contained  shall  be  so 
construed  as  to  affect  the  rights  of  boards  of  park  commissioners 
as  authorized  by  law."  The  reason  for  this  is  that  the  act  con- 
tains certain  general  regulations  which  apply  to  all  automobiles, 
but  section  8,  which  applies  to  speed  limit  only,  applies  to  a  pub- 
lic way  or  private  way  laid  out  under  the  authority  of  statute. 

4.  The  next  contention  is  that  under  section  14,  St.  1903,  p. 
511,  c.  473,  no  regulation  of  the  park  commissioners  shall  be 
effective  unless  notice  of  the  same  is  posted  conspicuously  at  the 
points  where  any  road  affected  thereby  joins  other  roads.  But  a 
reading  of  the  section  shows  very  clearly  that  the  last  sentence  of 
the  section  applies  only  to  special  regulations  made  by  boards  of 
aldermen  of  cities  and  selectmen  of  towns,  and  has  nothing  to 
do  with  boards  of  park  commissioners.  The  section  reads  as 
follows :  "Nothing  herein  contained  shall  be  so  construed  as  to 
affect  the  rights  of  boards  of  park  commissioners  as  authorized 
by  law.  Boards  of  aldermen  of  cities  and  the  selectmen  of  towns 
may  make  special  regulations  as  to  the  speed  of  automobiles  and 
motor  cycles,  and  as  to  the  use  of  such  vehicles  upon  particular 
roads  or  ways,  including  the  right  to  exclude  them  altogether 
therefrom.  Such  exclusion,  however,  shall  be  subject  to  an  appeal 
to  the  Massachusetts  Highway  Commission,  whose  decision  in  the 
case  shall  be  final.  No  such  special  regulation  shall  be  effective 
unless  notice  of  the  same  is  posted  conspicuously  at  the  points 
wdiere  any  road  affected  thereby  joins  other  roads." 


SAFETY  24d 

5.  The  last  contention  is  that  the  rule  of  the  board  of  park  com- 
missioners is  too  indefinite  to  support  criminal  proceedings.  Fault 
is  found  with  the  words  "ride  or  drive,"  but  we  are  of  opinion 
that  a  person  may  be  said  to  be  driving  an  automobile  if  he  is 
controlling  the  motive  power. 

We  find  nothing  else  in  the  case  which  requires  special  consider- 
ation.    Exceptions  overruled. 


KNOBLOCH  v.  CHICAGO,  M.  &  ST.  P.  RY.  CO. 
(Supreme  Court  of  Miuuesota,  1SS4.     31  Minu.  402,  IS  N.   W.   100.) 

GiLFiLLAN,  C.  J.  The  onl}^  question  presented  by  the  appellant 
on  this  appeal  is  as  to  the  validity  of  an  ordinance  of  the  city  of 
St.  Paul,  as  follows :  "That  no  railroad  company  or  corporation, 
or  their  agents  or  employes,  shall  run  a  locomotive  or  train  of 
cars,  or  single  car,  within  the  limits  of  the  city  of  St.  Paul,  at  a 
greater  speed  than  four  miles  per  hour,"  etc.  It  is  claimed  that 
this  is  in  restraint  of  commerce,  and  is  therefore  unreasonable 
and  void. 

The  facts  relied  on  by  appellant  to  show  this,  as  affecting  its 
line  in  question,  (its  short  line  between  St.  Paul  and  Minneapolis,) 
are:  The  length  of  the  line  is  ten  miles,  of  which  between  three 
and  four  miles  is  within  the  limits  of  the  city  of  Minneapolis,  (an 
ordinance  of  which  restricts  the  speed  to  six  miles  an  hour,)  and 
three  or  four  miles  is  within  the  city  of  St.  Paul,  leaving  a  space 
of  country  between  the  two  cities  of  about  three  miles ;  that  the 
running  time  between  the  ends  of  the  line  in  the  two  cities  is  30 
minutes,  or  20  miles  an  hour,  and  that  citizens  of  each  city  arc 
constantly  applying  to  appellant  to  reduce  the  running  time;  that 
observance  of  the  ordinances  would  increase  it  to  more  than  c»nc 
and  one-half  hours;  that  about  2,400  tons  of  freight  pass  over  ihc 
line  daily,  and  nearly  half  a  million  passengers  passed  over  it  in 
the  year  1882;  that,  although  the  crossing  where  rcspondcnl's 
cow  was  killed  is  within  the  platted  portion  of  the  city,  the  sur- 
rounding country  is  similar  to  the  open  country  out  of  the  city, 
and  the  street  similar  to  a  common  country  road,  there  being  no 
graded  streets  within  three-quarters  of  a  mile,  and  no  house  with- 
in a  quarter  of  a  mile,  in  the  direction  of  the  built-up  jjortion  of 
the  city.    The  street  seems  to  have  been  a  good  deal  traveled. 

We  do  not  question  the  power  of  the  courts  to  declare  an  ordi- 
nance of  a  municipal  corporation  void  as  in  restraint  of  trade.  The 
mere  fact,  however,  that  it  operates  to  restrain  trade  will  not  jus- 
tify such  action;  f(jr  proper  police  regulation  and  judicious  care 
for  the  lives  and  property  of  citizens  may  ref|uire  such  ordinances, 
although  it  interferes  in  some  measure  with  modes  of  transacting 
business.      An    ordinance    limiting    the    speed    of    railroad    trains 


246  POLICE    POWEItS    AND    REGULATIONS 

through  the  most  densely  peopled  parts,  or  across  the  most 
thronged  streets,  of  a  city  interferes  with  the  speedy  transaction  of 
business  by  railroads  to  the  same  extent  as  where  it  applies  to  the 
more  sparsely  settled  portions,  or  in  crossing  less  frequented 
streets;  but  no  one  would  say  that  an  ordinance  controlling  the 
speed  through  such  densely  peopled  parts  of  the  city,  or  across 
the  busiest  streets,  is  void  as  in  restraint  of  trade.  In  addition  to 
its  effect  in  obstructing  business,  there  is  the  question  of  its  ne- 
cessity or  reasonableness  as  a  proper  police  regulation.  The 
determination,  in  the  first  instance,  of  that  question  has  been  com- 
mitted by  the  legislature  to  the  discretion  and  judgment  of  the 
common  council.  When  they  have  exercised  their  discretion  and 
judgment,  and  passed  such  an  ordinance,  it  is  prima  facie  valid. 
It  must  be  apparent  that  to  justify  a  court  in  setting  aside  their 
action  its  unreasonableness  or  want  of  necessity  as  a  measure  for 
the  protection  of  life  and  property  should  be  clear,  manifest,  un- 
doubted, so  as  to  amount,  not  to  a  fair  exercise,  but  to  an  abuse 
of  discretion,  or  mere  arbitrary  exercise  of  the  power  of  the  coun- 
cil. City  of  St.  Paul  v.  Colter,  12  Minn.  41  (Gil.  16),  90  Am.  Dec. 
278;  City  of  Rochester  v.  Upman,  19  Minn.  108  (Gil.  78).  At  this 
time,  when  it  is  much  the  fashion  to  include  within  the  corporate  limits 
of  cities  large  tracts  of  surrounding  country,  there  will  undoubtedly 
be  portions  in  which  a  restriction  of  the  speed  of  trains  to  four 
miles  an  hour  may  be  so  manifestly  unnecessary  and  unreasonable 
that  a  court  may  declare  it  void.  Such  was  the  case  in  Meyers  v. 
Railroad  Co.,  57  Iowa,  555,  10  N.  W.  896,  42  Am.  Rep.  50,  where 
the  part  of  the  city  where  the  railroad  ran  was  mere  farm  or 
agricultural  lands  inclosed  with  fences,  and  not  laid  out  in  streets. 
The  portion  of  the  city  in  question  here  is  dififerent.  It  appears 
to  be  laid  out  in  streets.  Within  a  short  distance  of  the  crossing 
in  question  there  appears  to  be  a  considerable  and  rapidly  increas- 
ing city  population,  and  the  street  making  the  crossing  is  a  good 
deal  traveled.  Only  two  witnesses  speak  as  to  the  amount  of 
travel.  One  (for  the  plaintiff)  says,  "It  is  a  well-traveled  street." 
One  (for  the  defendant)  says,  "There  is  lots  of  travel  on  Grace 
street;  that  is  a  well  traveled  street."  While  it  may  be  true  that 
a  higher  rate  of  speed  through  the  portion  of  the  city  in  question 
would  be  consistent  with  the  public  safety,  we  cannot  say  it  is  so 
clearly  and  manifestly  the  case  that  we  can  hold  the  passage  of 
the  ordinance  an  abuse  of  discretion  on  the  part  of  the  common 
council.  If  the  ordinance  be  unreasonable,  and  unnecessarily  op- 
pressive to  commerce,  the  best  way  to  prove  that  and  secure  its 
modification  is  to  obey  it.    Judgment  affirmed. 


OCCUPATIONS   AND    AMUSEMENTS  241 


V.  Occupations  and  Amusements  ' 


PEOPLE  V.  WAGXER. 

(Supreme  Court  of  Michigan,  1S91.     86  Mich.  594,  49  X.  W.  600.  i:".  L.  R.  A. 

286,  24  Am.   St.   Rep.  141.) 

McGrath,  J.  This  case  comes  from  the  recorders'  court  of  ihe 
city  of  Detroit  by  writ  of  certiorari,  defendants  having  been  con- 
victed of  a  violation  of  a  city  ordinance.  By  stipulation,  the  cases 
come  up  on  one  record.  Defendants  are  bakers,  and  are  charged 
with  making  for  sale,  selling,  and  offering  for  sale,  bread  that  was 
deficient  in  weight  under  the  ordinance.  The  ordinance  is  entitled 
"An  ordinance  relative  to  the  manufacture  and  selling  of  bread." 
The  ordinance  provides  that  it  shall  not  be  lawful  for  any  person 
to  carry  on  the  trade  or  business  of  baker,  without  first  having  ob- 
tained from  the  common  council  a  permit  for  that  purjiose.  It  next 
prescribes  how  the  permit  shall  be  obtained,  and  that  the  clerk 
shall  keep  a  record  of  the  permits  granted.  It  then  concludes  as 
follows : 

"Sec.  4.  All  bread  of  every  description,  manufactured  by  the  bak- 
ers of  this  city  for  sale,  shall  be  made  of  good  and  wholesome 
flour  or  meal,  into  loaves  of  one  pound,  two  pounds,  and  iour 
pounds  (and  no  other)  avoirdupois  weight;  and  no  baker  shall 
make  for  sale,  or  shall  sell  or  expose  for  sale,  any  bread  that  shall 
be  deficient  in  weight,  according  to  the  requisitions  prescribed  in 
the  preceding  section  of  this  chapter:  provided,  always,  that  such 
deficiency  in  the  weight  of  such  bread  shall  be  ascertained  by  the 
sealer  of  weights  and  measures,  by  weighing,  or  causing  to  be 
weighed,  in  his  presence,  within  eight  h«>urs  after  the  same  shall 
have  been  baked,  sold,  or  exposed  for  sale:  and  provided,  further, 
that  whenever  any  allowance  in  the  weight  shall  be  claimed  on 
account  of  any  bread  having  been  baked,  sold,  or  exposed  for  sale 
more  than  eight  hours,  as  aforesaid,  the  burden  of  pn.of  in  respect 
to  the  time  when  the  same  shall  have  been  baked,  sold,  or  exi>ovC(l 
for  sale  shall  devolve  upon  the  defendant  or  baker  of  such  bread. 

"Sec.  5.  The  sealer  of  weights  and  measures,  under  the  direction 
of  the  chief  of  police,  .shall  be  inspector  of  bread;  and  it  shall  be 
his  duty,  and  he  is  hereby  authorized  and  recpiired.  from  time  to 
time,  and  not  less  than  once  in  each  month,  at  all  seasonal)le  h.Mirs, 
to  enter  into  and  inspect  and  examine  every  baker's  shop,  store- 
house, or  other  building  where  any  bread  is  or  shall  be  baked,  stor- 

«  For  (ll.scu.ssiou  of  prlnclpleH,  .see  Coolcy,  Mun.  Corp.  i  103. 


248  POLICE    POWERS   AND    REGULATIONS 

ed,  or  deposited,  or  offered  for  sale,  and  to  inspect  and  examine,  in 
any  part  of  said  city,  any  person  or  persons,  wagons  or  other  car- 
riages, carrying  any  loaf  of  bread  for  the  purpose  of  sale,  and 
weighing  the  same,  and  determine  whether  the  same  are  in  viola- 
tion of  the  true  intent  and  meaning  of  this  chapter;  and,  if  the 
said  inspector  shall  find  any  bread  not  conformable  to  the  directions 
herein  contained,  or  any  part  of  them,  he  shall  make  complaint 
thereof  for  the  purpose  of  having  such  person  prosecuted  according 
to  law. 

'^'Sec.  6.  No  person  or  persons  shall  obstruct,  or  in  any  manner 
impede  or  willfully  delay,  the  said  sealer  of  weights  and  measures 
in  the  execution  of  his  duties  under  this  act,  either  by  refusing 
him  or  delaying  his  entrance  or  admission  into  any  of  the  places 
above  named,  or  refuse  or  omit  to  stop  their  wagon  or  carriage 
as  aforesaid,  whereby  the  due  execution  of  this  ordinance,  or  any 
part  of  it,  shall  be  impeded  or  obstructed. 

"Sec.  7.  Any  violation  of  any  of  the  provisions  of  this  ordinance 
shall  be  punished  by  a  fine  not  to  exceed  fifty  dollars  and  the  cost 
of  prosecution ;  and  the  offender  may  be  imprisoned  in  the  Detroit 
house  of  correction  until  the  payment  thereof :  provided,  always, 
that  the  term  of  imprisonment  shall  not  exceed  the  period  of  six 
months." 

The  defendants  insist  (1)  that  matters  contained  within  the  body 
of  the  ordinance  are  not  within  its  title ;  (2)  that  by  the  ordinance 
private  property  is  taken  wihout  compensation ;  (3)  that  the  ordi- 
nance abridges  the  right  of  the  respondents  to  manufacture  loaves 
of  bread  of  such  size  or  weight  as  they  may  deem  most  salable; 
(4)  that  it  curtails  defendants'  business,  and  places  a  limitation  up- 
on the  capacity  of  respondents  to  carry  on  a  lawful  business ;  (5) 
that  the  ordinance  is  not  within  the  police  powers  of  the  state. 

There  is  no  force  in  the  first  objection,  as  the  provisions  of  the 
ordinance  are  clearly  within  the  scope  of  its  title.  It  has  been  held 
that  the  constitutional  provisions  relating  to  the  title  of  laws  pass- 
ed by  the  legislature  do  not  apply  to  ordinances  enacted  by  a  com- 
mon council  of  a  city.  People  v.  Hanrahan,  75  Mich.  611-615,  42 
N.  W.  1124,  4  L.  R.  A.  751. 

The  ordinance  does  not  provide  for  the  taking,  seizing,  or  de- 
struction of  shortweight  bread.  It  does  prohibit  the  sale  of  bread 
which  is  deficient  in  weight.  The  same  objection  might  be  made 
to  ordinances  prohibiting  the  importation  of  infected  rags,  or  the 
sale  of  diseased  cattle  or  of  unsound  beef,  or  of  decayed  vegetables, 
or  of  illuminating  oils  which  are  below  the  standard  test,  or  of  wa- 
tered milk.  In  Wheeler  v.  Russell,  17  Mass.  258,  it  was  held  that 
no  recovery  could  be  had  for  the  price  and  value  of  shingles  which 
were  not  of  the  statutory  dimensions.  In  Eaton  v.  Keegan,  114 
Mass.  433,  it  was  held  that,  in  view  of  the  statute  requiring  oats 


OCCUPATIONS    AND   AMUSEMENTS  '2i\) 

and  meal  to  be  sold  by  the  bushel,  no  recovery  could  be  had  for 
the  price  and  value  of  those  articles  when  sold  by  the  bag. 

It  is  claimed  by  defendants  that,  in  order  to  get  a  pound  of  bak- 
ed bread,  they  are  compelled  to  put  into  the  oven  more  than  a 
pound  of  dough,  and  that  the  process  of  baking  reduces  the  weight, 
and,  when  asked  what  it  is  that  evaporates,  they  reply,  "Water." 
But  they  say  the  process  of  baking  is  not  always  uniform.  The 
oven  may  be  too  hot.  In  such  case,  the  bread  crusts  or  skins  quick- 
ly, retaining  the  moisture.  And  again,  it  may  be  too  cold ;  in  which 
case  the  bread  dries  up,  rather  than  bakes,  and,  in  order  to  insure 
a  pound  loaf,  the  latter  contingency  must  be  provided  against,  and 
the  weight  of  the  dough  must  always  be  regulated  accordingly. 
That  fermentation  is  not  always  regular,  and,  when  it  reaches  a 
certain  point,  the  dough  must  be  put  into  the  oven,  without  refer- 
ence to  the  condition  of  the  oven.  That  the  cutting  up  of  the 
dough,  the  weighing  of  it,  and  its  transfer  to  the  oven  is  necessarily 
hurried,  and  the  scales  are  liable  to  become  clogged  or  affected  by 
dust.  Notwithstanding  all  the  difficulties  suggested  by  respond- 
ents, the  evidence  shows  that  the  bread  inspector  has  been  diligent 
in  the  performance  of  his  duties ;  had  frequently  visited  the  sev- 
eral bakeries  of  defendants,  and  but  one  of  these  defendants  has 
before  this  time  been  complained  of,  and  that  was  15  }ears  ago; 
and  it  is  admitted  by  defendants,  not  only  that  the  ordinance  may 
be  complied  with,  but  that  the  short-weight  bread  discovered  by 
the  inspector  was  made  for  the  very  purpose  of  testing  the  validity 
of  this  ordinance;  and,  after  the  authorities  had  caused  complaint 
to  be  made  against  defendants,  they  resumed  the  former  man- 
ner of  doing  business,  and  made  their  bread  in  accordance  with  t he- 
provisions  of  the  ordinance. 

Again,  it  is  claimed  that  a  barrel  of  flour  will  make  250  loaves  ot 
bread,  and  that  it  is  impossible  to  distribute  an  onlinary  aiivaiicc 
in  price  of  flour  over  this  product;  in  other  words,  that  the  price 
of  a  loaf  of  bread  cannot  be  advanced  a  fraction  of  a  cent.  This 
difliculty  affects  the  retail  dealer  more  than  the  wli(»lcsalcr.  It 
has  to  be  met  in  the  sale  of  a  jjound  of  nails,  of  a  do/cn  l)utt«m>. 
or  of  a  paper  of  needles,  as  well  as  in  the  sale  of  a  loaf  of  lircad. 
The  ordinance  does  not  attempt  to  regulate  the  price  of  the  com- 
modity. That  is  not  necessarily  fixed  with  reference  to  fltmr  at  its 
cheapest  price,  so  that,  until  the  price  of  flour  is  reduced  until  it 
reaches  a  point  where  the  reduction  may  l)c  distributed,  the  dealer 
gets  the  advantage  of  the  reduction,  and  when  it  advances  aliovc 
the  standard  the  consumer  gets  the  advantage,  until  a  point  i>  re.ich- 
ed  where  the  advance  may  be  added.  '1  his  (luct nation  and  the.se 
results  are  ordinary  incidents  of  trade.  The  .state  may  institute  any 
reasonable  preventive  remedy  when  the  fre(|urncy  of  the  frauds,  or 
the  difficuUy  experienced  by  indivichials  in  circumventing  them,  is  so 


250  POLICE    POWERS    AND    REGULATIONS 

great  that  no  other  means  will  prove  efficacious.  Tied.  Lim.  §  89,  p. 
208. 

Bread  is  an  article  of  general  consumption.  It  is  usually  sold  by 
the  loaf,  and  the  individual  consumer,  in  the  majority  of  cases,  buys 
by  the  single  loaf.  Each  transaction  involves  but  a  few  pennies,  al- 
though the  number  of  individual  transactions  in  a  large  city  reach- 
es each  day  into  the  thousands,  and  the  opportunities  for  fraud  are 
frequent.  It  would  be  practically  impossible  to  prevent  fraud  in 
the  sale  of  short-weight  loaves,  if  the  matter  was  left  to  the  ordi- 
nary legal  remedy  afforded  the  individual  consumer  for  fraud  or  de- 
ceit. The  amount  involved  would  not  justify  a  resort  to  litigation. 
Sales  are  invariably  made  in  loaves  of  the  size  of  one,  two,  or  four 
pound  packages,  and  the  ordinance  simply  takes  the  usual  and  ordi- 
nary packages  or  loaves  into  which  bread  is  made,  and  fixes  the 
standard  of  weight  of  each  package.  It  does  not  prohibit  the  sale 
of  bread  by  weight  if  it  overruns,  as  it  is  claimed  that  it  sometimes 
does,  nor  does  it  prohibit  the  exaction  of  an  increased  price  by  rea- 
son of  the  additional  weight.  It  does  not  prohibit  the  sale  of  a  half 
or  a  quarter  or  any  other  fraction  of  a  loaf.  Our  statutes  not  only 
fix  the  number  of  pounds  of  each  of  the  various  commodities  that 
shall  constitute  a  bushel,  but  they  also  provide  that  a  "box"  or 
"basket"  of  peaches  shall  contain  one-third  of  a  bushel,  and  they 
fix  the  size  of  a  "barrel"  of  fruit,  roots,  or  vegetables,  and  they  may, 
with  equal  propriety,  fix  the  weight  of  a  package  or  loaf  of  bread. 

The  police  power  of  a  state  is  not  confined  to  regulations  looking 
to  the  preservation  of  life,  health,  good  order,  and  decency.  Laws 
providing  for  the  detection  and  prevention  of  imposition  and  fraud, 
as  a  general  proposition,  are  free  from  constitutional  objection. 
Tied.  Lim.  p.  208,  §  89.  The  charter  of  the  city  of  Detroit  empow- 
ers the  common  council  "to  direct  and  regulate  the  weight  and 
quantity  of  bread,  the  size  of  the  loaf,  and  the  inspecting  thereof." 
The  ordinance  is  clearly  within  this  provision,  and  it  cannot  under 
the  decision  in  People  v.  Armstrong,  73  Mich.  293,  41  N.  W.  275,  2 
L.  R.  A.  721,  16  Am.  St.  Rep.  578,  be  subjected  to  the  test  of  rea- 
sonableness. The  convictions  are  affirmed,  and  the  writ  dismissed. 
The  other  justices  concurred. 


CITY  OF  DULUTH  v.  KRUPP, 

(Supreme  Court  of  Minnesota,  1891.     46  Minn,  435,  49  N.  W.  235.) 

Mitchell,  J.®  The  defendants  were  convicted  of  peddling  with- 
out a  license,  contrary  to  the  provisions  of  a  city  ordinance  entitled 
"Ordinance  No.  19.     Peddlers,  how  Licensed,"  passed  by  the  city 

8  Part  of  the  opinion  is  omitted. 


OCCUPATIONS    AND    AMUSEMENTS  251 

council  in  the  assumed  exercise  of  the  power  granted  them  by  the 
city  charter  "to  Hcense  and  regulate  all  peddlers  doing  business 
within  the  city."  Section  1  of  the  ordinance  forbids  peddling  with- 
in the  city  without  a  license.  Section  2  provides  for  the  issuing  of 
licenses,  and  fixes  the  amount  of  the  fee  at  $100  for  a  year,  $iX)  for 
six  months,  $15  for  a  month,  and  $5  for  one  day.  Section  3  defines 
the  term  "peddling"  as  including  all  persons  who  go  about  the  city 
selling,  or  offering  to  sell,  personal  property;  but  provides  that  it 
shall  not  include  persons  selling  at  wholesale  to  dealers,  or  to  the 
acts  of  merchants  or  their  employes  in  taking  orders  for  goods,  in 
stock  at  their  places  of  business,  at  the  houses  of  their  customers. 
Section  4  prohibits  any  one,  "whether  licensed  under  this  ordinance 
or  not,"  from  calling  attention  to  their  business  or  the  wares  which 
they  have  to  sell  by  crying  them  out,  blowing  a  horn,  ringing  a 
bell,  or  by  any  other  loud  or  unusual  noise.  Section  5  fixes  the  pen- 
alty for  the  violation  of  the  ordinance. 

The  defendants  claim  that  the  ordinance  is  invalid  on  three 
grounds,  viz.:  (1)  That  it  was  never  legally  passed;  (2)  that 
it  embraces  more  than  one  subject,  one  of  which  is  not  exi)ressed  in 
the  title;  and  (3)  that  it  is  not  a  legitimate  exercise  of  the  police 
power  to  regulate  peddling,  but  a  mere  tax  for  revenue  purposes, 
as  demonstrated  by  the  unreasonable  amount  of  the  license  fee  ex- 
acted, and  the  fact  that  its  provisions  in  no  way  look  to  the  regula- 
tion or  control  of  the  business.     *     *     * 

3.  The  license  fee  exacted  is  somewhat  large,  and  the  provisions 
of  the  ordinance  looking  to  the  regulation  of  the  business  of  ped- 
dling are  somewhat  meager.  But  the  fourth  section  certainly  con- 
tains provisions  tending  to  secure  the  orderly  pursuit  of  the  busi- 
ness ;  and  the  mere  fact  of  exacting  a  license  fee  is  one  method  of 
restricting  it,  which  is  itself  a  legitimate  method  of  regulating  some 
kinds  of  business.  The  latitude  that  is  given  to  municipal  bodies 
in  fixing  the  amount  of  license  fees,  and  the  duty  of  courts  not  to 
declare  the  amount  thus  fixed  unreascjnable,  exce[)t  in  very  plain 
cases,  have  been  fully  considered  by  us  in  former  cases.  Sec  City 
of  Mankato  v.  Fowler,  Zl  Minn.  3^)4,  20  N.  W.  361  ;  In  re  White. 
43  Minn.  250,  45  N.  VV.  232.  If  this  was  a  case  of  one  of  the  ordi- 
nary legitimate  kinds  of  business,  like  that  of  butcher,  baker,  auc- 
tioneer, or  the  like,  which  are  not  liable  to  bccoine  public  nuisances, 
and  consequently  no  occasion  or  right  existed  to  restrict  the  number 
of  persons  who  shall  engage  in  it,  it  might  be  a  (pjcstion  whether 
the  fee  exacted  wf)nld  not  be  unreasonal)le. 

r>ut  the  evils  hable  to  grow  out  of  .some  occupations  may  be  such 
that  their  suppression  can  only  be  attained  to  an  appreciable  de- 
gree by  the  imposition  of  some  restraint  upon  the  pursuit  of  such 
callings  or  kinds  of  business.  In  respect  to  the  great  majority  of 
occupations,   no   such   evils   are    likely   to    follow;    and   consequently 


252  POLICE    POWERS    AND    REGULATIONS 

it  would  not  be  competent  to  attempt  to  restrain  the  number  of 
those  engaging  in  them  by  the  imposition  of  a  large  license  fee.  All 
that  could  be  required  would  be  an  amount  sufficient  to  pay  the 
cost  of  issuing  the  license,  and  to  defray  the  expense  of  necessary 
police  supervision.  But  where  the  business  is  of  such  a  nature  that 
its  prosecution  will  do  damage  to  the  public,  or  that  it  is  liable  to 
degenerate  into  a  public  nuisance,  then  it  is  a  legitimate  exercise  of 
the  police  power  to  impose  a  license  fee  large  enough  to  act  as  a 
restraint  upon  the  number  of  persons  who  might  otherwise  engage 
in  such  business.  Tied.  Lim.  274  et  seq.  It  is  upon  this  principle 
that  very  high  license  fees  are  exacted  from  those  vending  intox- 
icating liquors.  Peddling,  although  in  itself  a  moral  and  lawful 
pursuit,  is  one  of  the  kinds  of  business  which,  if  not  thus  restrained, 
is  very  liable  to  become  a  great  nuisance,  especially  in  cities,  as 
almost  every  one  knows  by  actual  experience ;  and  in  view  of  that 
fact  it  was  a  legitimate  exercise  of  the  police  power  vested  in  the 
city  of  Duluth  to  exact  a  license  fee  large  enough  to  restrict  the 
number  of  persons  engaging  in  peddling,  even  although  the  sum 
was  larger  than  enough  to  pay  the  cost  of  license  and  the  expense 
of  any  police  surveillance  which  the  city  might  exercise  over  the 
business.  In  view  of  all  the  circumstances,  we  cannot  say  that  the 
fee  exacted  is  unreasonable. 

4.  It  is  further  urged  that  the  evidence  did  not  justify  the  con- 
viction ;  in  other  words,  that  the  acts  complained  of  did  not  consti- 
tute peddling.  The  evidence  showed  that  the  defendants  were 
butchers  who  had  a  meat-shop  in  the  city  of  Duluth ;  that  they 
had  a  "delivery  wagon,"  which  they  sent  out  in  charge  of  an  em- 
ploye with  meat  to  be  delivered  to  fill  orders  previously  given  by 
their  customers,  but  that  at  the  same  time  they  were  accustomed  to 
send  out  in  the  wagon  other  meat,  also  knives  for  cutting  it,  and 
scales  for  weighing  it,  and  that  the  employe  in  charge  of  the  wagon 
was  accustomed  to  drive  from  place  to  place  soliciting  business,  and 
selling  to  such  as  desired  to  buy  from  him,  cutting  up  the  meat,  and 
weighing  it  out  to  the  purchaser  from  the  wagon.  He  solicited 
purchasers  for  the  meat  not  only  from  the  wagon,  but  by  going 
from  house  to  house  when  inmates  did  not  see  him  and  come  out 
to  the  street.  The  defendants  may  not  have  belonged  to  the  class 
of  peddlers  at  which  the  ordinance  was  primarily  aimed,  but  this 
mode  of  doing  business  constituted  "peddling,"  not  only  within  the 
definition  given  in  the  ordinance,  but  also  according  to  the  general 
and  accepted  definition  of  that  term.  The  fact  that  the  person  in 
charge  of  the  wagon  may  have,  as  he  testified,  only  solicited  those 
whom  he  calls  "customers," — that  is,  persons  who  had  been  accus- 
tomed to  buy  from  him, — did  not  make  it  any  the  less  "peddling." 
City  of  Chicago  v.  Bartee,  100  111.  61 ;  Graffty  v.  Rushville,  107 
Ind.  502,  8  N.  E.  609,  57  Am.  Rep.  128. 


OCCUPATIONS    AND   AMUSEMENTS  253 

The  exclusion  of  the  evidence  complained  of  in  the  sixth  as<;i-n- 
ment  of  error  was  at  most  error  without  prejudice,  as  the  whole 
matter  sought  to  be  incjuired  of  was  afterwards  fullv  -one  into 
without  objection.  We  find  no  error  in  the  record,  and  the  result 
IS  that  the  order  appealed  from  must  be  affirmed. 


251  STREETS,  SEWERS,  PARKS,  AND    PUBLIC    BUILDINGS 


STREETS,    SEWERS,    PARKS,    AND    PUBLIC    BUILDINGS 

I.  Use  of  Streets  ^ 


TOWNSEND  V.  EPSTEIN. 

(Court  of  Appeals  of  Maryland,  1901.     93  Md.  537,  49  Atl.  629,  52  L.  R.  A. 

409,  86  Am.  St.  Rop.  441.) 

Suit  by  Tovvnsend,  Grace  &  Co.  against  Jacob  Epstein.  From  a  de- 
cree in  favor  of  defendant,  plaintiffs  appeal. 

Jones,  J.-  This  case  presents  questions  of  more  than  usual  in- 
terest and  importance,  but  we  think  principles  enunciated  in  compara- 
tively recent  decisions  of  this  court  must  so  far  control  its  decisions 
as  to  render  the  solution  of  these  questions  free  from  difficulty.  The 
facts  giving  rise  to  this  litigation  are  as  follows : 

The  appellants  (who  were  plaintiffs  below)  are  the  owners  in  fee 
of  a  lot  of  ground  fronting  about  49  feet  on  the  south  side  of  Fayette 
street,  in  the  city  of  Baltimore,  and  running  southerly,  with  uneven 
width,  back  to  and  abutting  about  68  feet  on  a  small  street  known  as 
"Garrett  Street,"  which  runs  east  and  west  parallel  with  Fayette  street 
to  the  north  of  it,  and  with  Baltimore  street  to  the  south  of  it.  This 
lot  is  occupied  by  a  large  building  extending  from  street  to  street, 
which  is  used  by  the  appellants  as  a  factory  for  the  manufacture  of 
straw  goods.  In  this  building,  looking  out  upon  Garrett  street,  are 
a  number  of  windows  for  the  admission  of  light  to  the  different  floors 
thereof.  The  appellee  is  the  lessee  and  occupant  of  three  parcels  of 
ground  with  the  buildings  thereon  fronting  on  the  north  side  of  Balti- 
more street,  and  extending  northerly  to  Garrett  street,  and  is  conduct- 
ing upon  these  premises  a  large  merchandising  business.  For  the  pur- 
poses of  this  business  he  has  recently  purchased  a  lot  of  ground  lying 
between  and  abutting  on  Fayette  and  Garrett  streets,  fronting  on  the 
south  side  of  the  former,  and  extending  back  to  the  north  side  of  the 
latter  street,  and  situated  immediately  opposite  to  where  his  premises 
lying  between  Baltimore  and  Garrett  streets  abut  on  the  latter  street, 
and  to  the  west  of  the  premises  of  the  appellants.  Upon  this  lot  he 
proposes  to  erect  a  six-story  warehouse,  and  to  establish  communica- 
tion between  that  and  the  premises  and  buildings  occupied  by  him  on 
Baltimore  street  by  a  tunnel  under  and  a  structure  above  and  across 
Garrett  street.  The  tunnel  has  been  constructed.  The  structure 
across  Garrett  street  has  also  been  nearly  completed.  This  is  an  in- 
closed structure,  about  33  feet  to  the  west  of  the  premises  of  the  ap- 

1  For  discussion  of  principles,  see  Cooley,  Mun.  Corp.  §  109. 

2  I'art  of  the  opinion  is  omitted. 


USE    OF   STREETS  255 

pellants.  and  is  about  17  feet  above  the  surface  of  the  street.  It  is 
now  connected  with  the  building  of  the  appellee  which  fronts  on 
Baltimore  street  and  extends  back  to  the  south  side  of  Garrett  street ; 
is  30  feet  in  width,  running  with  the  latter  street;  and  is  built  3V2 
stories  high  across  it  to  where  this  structure  is  intended  to  be  con- 
nected on  its  north  side  with  the  warehouse  which  the  appellee  pro- 
poses to  there  erect. 

Before  proceeding  to  construct  this  tunnel  or  to  erect  this  connect- 
ing structure,  the  appellee  applied  for  and  procured  from  the  mayor 
and  city  council  of  Baltimore,  after  complying  with  all  formal  re- 
quirements, the  passage  of  an  ordinance  purporting  to  grant  to  him 
the  privilege  and  right,  under  regulations  therein  prescribed,  to  con- 
struct such  tunnel  under  Garrett  street,  and  to  erect  an  inclosed  super- 
structure across  said  street  to  "connect  one  or  more  floors  of  the 
premises  of  Jacob  Epstein  on  West  Baltimore  street  *  *  *  with 
the  corresponding  floor  or  floors  of  the  building  or  improvements  to 
be  erected  by  him  on  the  south  side  of  West  Fayette  street  and  the 
north  side  of  West  Garrett  street."  This  ordinance  recited  that  this 
right  was  granted  "for  the  convenience  of  the  public  having  business 
with  Jacob  Epstein." 

The  appellants  began  this  suit  by  filing  a  bill  in  equity  charging,  in 
substance,  that  this  ordinance,  in  attempting  to  grant  to  the  ai)pcl- 
lee  the  right  to  build  a  tunnel  under  and  a  structure  over  Garrett 
street,  as  therein  provided,  is  invalid  and  void,  and  that  the  attempt 
made  by  the  appellee  to  exercise  such  right  i^  an  invasion  of  their 
rights  as  abutting  lot  owners  on  said  street.  They  pray  that  the  said 
ordinance  shall  be  declared  invalid  and  inoperative,  and  that  the  ap- 
pellee be  perpetually  enjoined  from  digging  the  tunnel  and  from  erect- 
ing the  superstructure  as  proposed,  and  that  he  be  required  to  restore 
the  earth  removed  from  the  tunnel,  and  to  take  down  and  remove  such 
part  of  said  superstructure  as  had  already  been  creeled.  The  trial 
court  refused  the  relief  prayed  for  by  the  appellants,  and  decrccil  that 
their  bill  be  dismissed. 

Garrett  street  is  a  public  street  of  the  city  of  Baltimore,  aiul  as 
such  subject  to  the  same  control  of  the  municipality  as  it  has  over  all 
of  its  streets  and  highways.  The  rights  of  the  parties  to  this  con- 
troversy are,  therefore,  to  be  determined  from  their  relalicm  to  this 
street  as  a  public  street  or  highway  of  the  city.  *  *  *  It  would 
seem,  therefore,  that  the  api)cllants,  as  against  the  appellee,  can  claim 
no  greater  rights  in  or  over  this  street  than  such  as  belong  to  both 
I)arties  as  abutting  owners  upon  this  highway.  The  (juestion.  there- 
fore, is,  do  these  rights  entitle  the  api)ellaiUs  to  the  relief  prayed  for 
in  their  bill  against  the  acts  of  the  appellee  in  rcii^rrt  to  the  street  in 
question  which  are  therein  complained  of?     * 

That  owners  of  lots  or  ground  abutting  upon  the  public  streets  have 
lights  in  the  easement  which  are  valuable,  and  arc  in  addition  to  those 


256  STREETS,  SEWERS,  PARKS,  AND    PUBLIC    BUILDINGS 

which  they  have  in  common  with  the  general  public,  is  recognized  in 
our  statute  law,  which  confers  upon  the  city  of  Baltimore  the  power 
for  laying  out  and  closing  up  streets  by  providing  for  compensation  to 
such  owners  upon  the  closing  of  an  adjacent  street  (Acts  1898,  c.  123, 
§  6,  subtit.  "Streets,  Bridges  and  Highways"),  the  same  provision  be- 
ing formerly  contained  in  Code,  art.  4,  §  806,  Pub.  Loc.  Laws.  Such 
right  of  the  abutting  owner  thus  recognized  was  enforced  by  this 
court  in  the  case  of  Van  Witsen  v.  Gutman,  79  Md.  405,  29  Atl.  608, 
24  L.  R.  A.  403 ,  where  it  was  said :  "It  is  recognized  by  the  statute 
that  abutting  owners  have  interests  in  the  street  or  alley  which  are 
valuable,  and  that  these  cannot  be  taken  for  the  public  use  without 
compensation.  It  is  believed  that  no  one  will  contend  that  they  can 
be  taken  for  private  use  on  any  terms  whatsoever.  Certainly  such 
a  doctrine  has  never  at  any  time  found  any  toleration  in  this  state." 
In  the  case  just  referred  to,  relief  was  sought  against  the  obstruction 
of  the  public  alley  there  in  question,  so  as  to  cut  off  the  complaining 
lot  holders  from  ingress  and  egress  from  and  to  another  public  street, 
and  to  destroy  the  right  of  passage  out  and  over  said  alley  to  this 
street.     *     *     * 

Now,  this  valuable  property  right  in  the  public  street  which  this 
court  upheld  in  the  case  just  referred  to  embraces  something  more 
than  the  mere  right  of  passage  over  the  surface  of  the  street,  which 
was  the  right  more  directly  involved  in  that  case.  The  abutting  lot 
holder  has  the  right  to  the  enjoyment  of  the  light  and  air  which  the 
highway  affords.  To  deprive  him  of  this  right  would  be  to  impair,  or, 
it  might  be,  to  destroy,  the  comfort,  enjoyment,  or  use  to  be  derived 
from  the  easement  to  which  he  is  entitled ;  and  we  find  this  recog- 
nized by  very  high  authority.  In  2  Dill.  Mun.  Corp.  (4th  Ed.)  §  712, 
it  is  said :  "There  is  a  large  class  of  cases  in  which  no  recovery  can 
be  had  for  mere  consequential  injuries  to  adjacent  property  from  the 
construction  of  public  improvements  in  the  streets,  towns,  and  cities ; 
the  lot  owner  holding  subject  to  the  right  of  the  public  to  use  the 
streets  for  any  purpose  consistent  with  the  legitimate  uses  for  which 
they  were  dedicated  or  acquired.  But  lot  owners  have  a  peculiar  in- 
terest in  the  adjacent  street,  viz.  easements  of  access,  light,  and  air, 
which  are  property  rights,  and  as  such  are  as  inviolable  as  the  proper- 
ty in  the  lots  themselves;  and  they  may  recover  from  the  company 
making  such  improvements  such  damages  as  they  may  sustain  by  in- 
juries to  or  invasions  of  such  easements."  Again,  in  the  case  of  Field 
V.  Barling,  149  111.  556,  37  N.  E.  850,  24  L.  R.  A.  406-409,  41  Am.  St. 
Rep.  311,  the  court  said:  "It  will  not  be  necessary  to  cite  authorities 
in  support  of  the  proposition  that  a  private  individual  cannot  appropri- 
ate to  his  own  exclusive  use  a  portion  of  the  surface  of  a  street  dedi- 
cated to  the  public  use.  *  *  *  The  dedication  of  the  strip  of  land 
for  a  public  street  embraced  not  only  the  surface  of  the  ground,  but 
the  light  and  air  above,  and  an  individual  has  no  more  right  to  ob- 
struct the  light  and  air  above  the  street  than  he  has  to  obstruct  the 


USE   OF  STREETS  257 

surface  of  the  soil."  The  case  just  cited  is  pecuHarly  apt  here,  be- 
cause it  deals  with  facts  and  conditions  very  similar  to  those  presented 
by  the  case  at  bar.     *     *     * 

It  is  thus  seen  that  the  right  of  the  abutting  owner  to  light  and  air 
from  a  public  highway  as  part  and  parcel  of  the  easement  is  distinctly 
recognized  in  the  authorities  when  such  right  has  been  drawn  in  ques- 
tion, and  it  rests  upon  sound  and  obvious  reason.  Recognition  of  this 
right  is  not  at  all  at  variance  with  the  decisions  of  this  and  other 
courts  of  this  country  in  regard  to  the  doctrine  of  ancient  lights,  which 
hold  that  such  doctrine  is  unsuited  to  conditions  here.  The  case  of 
Cherry  v.  Stein,  11  ]\Id.  1,  cited  and  relied  upon  by  the  counsel  for  the 
appellee,  is  an  illustration  of  these  cases.  The  doctrine  of  ancient 
lights,  that  they  repudiate,  involves  an  abridgment  of  the  use  which  an 
owner  can  make  of  his  own  property.  It  puts  upon  the  property  of 
one  a  servitude  in  favor  of  another.  This  is  not  the  nature  of  the 
right  to  light  and  air  from  a  highway,  which  belongs  to  an  abutting 
owner  as  part  of  the  easement.  This  right  to  light  and  air  is  the  dis- 
tinct right  of  every  abutting  owner ;  and  in  claiming  protection  for 
it  such  owner  is  not  imposing  a  servitude  upon  his  neighbor's  property 
for  his  benefit,  but  is  only  asserting  his  equal  right  with  his  neighbor 
to  the  enjoyment  of  an  easement  common  to  them  both.     *     *     * 

We  have  seen,  now,  the  nature  and  extent  of  the  rights  of  the  ap- 
pellants in  and  to  the  street  of  the  obstruction  of  which  they  comj)lain. 
If  the  public  easement  has  been  improperly  and  unlawfully  obstructed 
by  the  appellee,  then  he  has  been  guilty  of  creating  a  nuisance:  and. 
if  the  appellants  have  suffered  therefrom  an  injury  ditTerent  in  kind 
from  and  beyond  that  sultered  by  the  comnuuiity  generally,  or  special 
and  particular  damage  resulting  to  them  by  reason  of  the  nuisance, 
then  they  have  a  right  to  their  private  remedy  for  such  injury,  (^-iri- 
tee  V.  Mayor,  etc.,  53  Md.  422;  Field  v.  Barling,  supra.  To  discover 
what  injury,  if  any,  the  appellants  have  suffered  from  the  acts  of  the 
appellee,  and  the  character  of  the  injury,  resort  must  be  had  to  the 
proof.  This  does  not  show  that  the  appellants  have  sulTcrcd  or  arc 
sufTering  any  injury  from  the  tunnel  constructed  under  the  bed  of  the 
street  in  question  as  has  been  described.  In  reference  to  the  super- 
structure, the  proof  shows  that  it  tends  to  and  <loes  diminish  nncj  ob- 
struct the  light  from  the  street  to  the  premiers  of  the  appellanls. 
*     *     * 

It  appears,  therefore,  that  the  api)ellants  have  sufTcrcd  injury  from 
the  erection  of  the  superstructure  complained  of.  It  further  ai)i)ears 
that  this  injury  is  one  different  in  kind  and  degree  from,  and  in  addi- 
tion to,  such  injury  as  the  general  public  suder  by  reason  of  the  ob- 
struction. This  results  from  the  situation  of  the  premises  of  the  ap- 
pellants with  respect  to  the  obstruction,  and  the  nature  of  the  use  of 
these  premises,  and  the  construction  of  the  i)art  thereof  abutting  on 
Garrett  street.  The  proof  shows  that  in  the  i-art  thus  abutting  there 
COOLEY  Case.s  Mun.C. — 17 


258  STREETS,  SEWERS,  PARKS,  AND    rUBLIC    BUILDINGS 

are  many  windows,  as  to  some  of  which,  in  the  lower  floors  of  the 
building,  there  is  an  entire  dependence  for  light  upon  Garrett  street. 
The  premises  are  used  for  manufacturing  purposes,  for  which  a  prop- 
er supply  of  light  is  more  of  a  necessity  than  a  mere  matter  of  com- 
fort or  convenience.  It  is  further  shown  that,  owing  to  the  diminu- 
tion of  light  resulting  from  the  obstruction  in  question,  the  appellants 
have  been  compelled  to  resort  to  an  increased  supply  of  artificial  light 
for  the  purposes  of  their  business.  These  considerations  would  seem 
to  make  a  distinct  difference  between  the  injury  to  the  appellants 
caused  by  the  obstruction  of  which  they  complain  as  a  nuisance  and 
that  suffered  by  the  general  public. 

It  is  contended  on  behalf  of  the  appellee,  however,  that,  though 
there  may  result  injury  and  inconvenience  to  the  appellants  from  the 
erection  and  maintenance  of  the  structure  in  question,  the  appellants 
have  no  cause  of  action,  and  are  without  remedy,  because  the  structure 
is  a  lawful  one,  in  that  it  was  authorized  by  the  ordinance  of  the 
mayor  and  city  council,  which  has  already  been  referred  to.  The  cor- 
poration, the  mayor  and  city  council  of  Baltimore,  is  invested  with  the 
title  to  and  control  over  the  public  streets.  This  control,  however,  is 
not  an  arbitrary  control.  The  streets  and  highways  are  held  in  trust 
for  the  benefit,  use,  and  convenience  of  the  general  public.  There  are 
many  ways  in  which  the  power  to  control  and  regulate  the  use  of  the 
streets  can  be  and  must  be  exerted  by  the  municipality  to  meet  the 
necessities  and  the  convenience  of  an  urban  population,  but  the  ex- 
ertion of  this  power  must  have  for  its  object  a  public  purpose.  It  is 
not  in  accord  with  the  trust  upon  which  the  municipality  holds  the 
streets,  nor  with  the  nature  of  the  control  which  it  has  over  them,  to 
make  use  of  the  power  and  authority  with  which  it  is  invested  in  that 
regard  to  promote  a  mere  private  purpose,  to  subserve  a  mere  private 
interest,  or  to  subordinate  the  right  of  one  citizen  in  the  streets  or  in 
a  street  of  the  city  to  the  private  interest  and  convenience  of  any  other. 
In  the  case  of  Van  Witsen  v.  Gutman,  79  Md.  405,  29  Atl.  608,  24 
L.  R.  A.  403,  supra,  this  court  held  that  this  could  not  be  done  even 
if  compensation  were  made,  and  though  done  under  the  guise  of  serv- 
ing a  public  purpose.  A  fortiori,  it  cannot  be  done  without  compen- 
sation. 

We  are  confronted  here  with  the  same  inquiry  that  the  court  was 
called  upon  to  make  in  the  case  last  cited :  Was  the  ordinance  under 
which  the  appellee  here  undertakes  to  justify  the  acts  complained  of 
passed  to  subserve  a  public  purpose,  or  does  it  serve  a  mere  private 
purpose  and  private  and  individual  interests?  Upon  the  face  of  it,  it 
seems  to  recognize  the  limitations  upon  the  right  and  power  of  the 
municipality  to  pass  ordinances  of  this  nature  by  expressing  its  ob- 
ject to  be  "for  the  convenience  of  the  public  having  business  with 
Jacob  Epstein."  This  is  a  rather  thin  disguise.  It  is  but  another  form 
of  saying  "to  promote  the  private  business  of  Jacob  Epstein  and  his 
convenience  in  respect  thereto."     How  does  it  serve  the  general  pub- 


USE   OF   STREETS  200 

lie,  or  a  public  purpose,  to  facilitate  Jacob  Epstein,  at  tbe  expense  of 
his  neighbors,  in  attracting  customers  to,  and  serving  them  at.  his 
store?  Aside  from  this,  the  proof  makes  it  perfectly  clear  that  only 
private  interests  are  to  be  subserved  by  the  privileges  obtained  under 
the  ordinance  in  question.  The  appellee,  in  his  testimony,  says  "that 
he  intends  to  use  this  superstructure,  after  his  Fayette  street  building 
is  completed,  as  a  means  of  egress  and  ingress  from  the  Baltimore 
street  premises  to  his  Fayette  street  premises,  for  his  customers  and 
his  help  on  the  floor" ;  "that,  if  anybody  wants  to  go  through  there,  to 
use  it  as  a  way  to  go  between  Baltimore  and  Fayette  streets,  he  would 
not  object,  but  that  he  does  not  intend  it  for  a  public  thoroughfare." 
This  only  condenses  what  sufficiently  appears  otherwise,  and  evidences 
the  absolutely  private  purpose  for  which  the  structure  is  to  exist,  <ind 
the  private  control  that  it  is  to  be  under. 

If  the  municipality  can  grant  a  privilege  of  the  character  of  the  one 
here  in  controversy,  it  implies  a  power  to  practically  destroy  a  street 
as  an  open,  light,  and  comfortable  highway,  and  its  use  for  the  pur- 
poses of  residence  or  business  by  the  abutting  owners  in  total  disre- 
gard of  the  rights  of  such  owners.  If  the  privilege  be  granted  to  one, 
it  cannot  be  denied  to  others  who  may  apply  for  it  in  like  circum- 
stances ;  and  the  grant  of  such  privilege  might  go  to  the  extent  of 
practically  transforming  any  part  of  a  street  from  an  open  highway 
affording  unobstructed  passage,  light,  and  air  into  a  covered  and  dark- 
ened way.  The  exercise  of  such  a  power  as  was  attempted  in  the 
ordinance  to  which  reference  has  been  had  cannot  receive  the  sanc- 
tion of  this  court.  The  ordinance,  for  the  reasons  assigned,  is  an 
invalid  act,  and  affords  to  the  appellee  no  bar  to  the  legal  redress  to 
which  the  appellants  are  entitled  for  the  injury  caused  to  iheni  by 
the  acts  of  which  they  here  complain.     *     *     ♦     Keverscd. 


k 


CITY  OF  ST.  PAUL  v.  CHICAGO,  M.  .^  ST.  P.  RV.  CO. 

(Suprenie  Court  of  AliniKsola,  1S9G.     a'{  Minn.  :;:;o,  (r.  N.  W.  V,V.K  .'tl  L.  H.  \. 

184.) 

On  rehearing. 

MrrciiHLL,  J."*  This  appeal  has  once  before  been  considered  by 
this  court.     63  Minn.  330,  63  X.  W.  267.     *     *     * 

The  land  in  question  fronts  on  the  Mississippi  river,  and  was 
dedicated  by  the  original  proprietor  to  pubhc  u.se  as  a  "Icvcc." 
Defendant's  grantor,  being  in  pos.session  of  the  premises  and  chiim- 
ing  adversely  to  the  city,  had  erected  thereon  a  woo<len  freight 
house,  fronting  on  the  river,  and  some  400  or  450  feet  long.  In 
1881.  after  defendant  took  possession,  it  presented  a  petition  to  the 
common  council  of  the  city  of  St.  Paul,  stating  that  it  contemplated 

3  Pnrt  of  thp  opinion  Is  omlttofl. 


260  STREETS,  SEWERS,  PARKS,  AND    PUBLIC   BUILDINGS 

taking  down  this  freight  house,  and  replacing  it  with  a  large  and 
permanent  one,  and  asking  permission  in  the  meantime  to  erect  a 
temporary  wooden  structure.  This  permit  was  granted,  the  limit 
of  the  permit  being  two  years. 

In  March,  1882,  the  defendant  presented  a  further  petition  to 
the  common  council,  stating  that  it  was  then  ready  to  construct  its 
new  freight  house,  which  was  described  as  to  be  a  large,  elegant, 
and  permanent  structure,  plans  of  which  were  submitted.  The 
petition  further  stated  that,  in  order  to  carry  out  the  plan  of  the 
structure  as  demanded  by  the  growing  commerce  of  the  city,  it 
would  be  necessary  to  extend  the  river  front  of  the  building  out  in- 
to the  river  from  seven  to  ten  feet  further  than  the  front  of  the 
old  one ;  and  requested  the  council  to  approve  the  plan  of  the  pro- 
posed building,  and  to  grant  permission  to  extend  it  out  into  the 
river  to  the  limit  above  mentioned.  The  plan  proposed  was  of  a 
building  about  600  feet  long  and  50  feet  wide,  of  brick,  with  stone 
foundation  and  a  slate  roof.  In  response  to  this  petition  the  council, 
in  April,  1882,  by  a  unanimous  vote,  passed  the  ordinance  in  ques- 
tion (No.  286),  which  is  as  follows : 

"Section  1.  That  permission  be,  and  the  same  is  hereby  given  to 
the  Chicago,  Milwaukee  &  St.  Paul  Railway  Company  to  take  down 
and  remove  the  old  freight-house,  which  is  owned  and  used  by  said 
company,  standing  next  below  Sibley  street  on  the  levee,  and  to  erect 
a  new  freight  building  upon  the  site  now  occupied  by  said  old  freight- 
house,  provided  that  the  new  structure  may  be  extended  a  distance 
of  ten  feet  nearer  the  Mississippi  river  than  the  old  one,  if  the  city 
engineer  shall  be  of  the  opinion  that  the  same  shall  in  no  manner  in- 
terfere with  the  navigation  of  said  river.  And  provided  further,  that 
said  new  freight-house  shall  be  built  substantially  in  accordance  with 
the  plans  on  file  in  the  office  of  the  city  clerk.  And  provided  that 
the  basement  or  lower  story  fronting  on  the  river  shall  be  laid  with 
substantial  floor,  and  said  lower  story,  together  with  the  platform 
on  the  river  front,  and  the  railway  track  along  the  said  river  front 
■  shall  be  open  and  subject  to  the  use  of  the  public  for  all  wharfage 
and  transfer  purposes  without  charge,  and  a  sufficient  platform  and 
entrance  for  drays  shall  be  provided  for  said  lower  story  at  the  end  of 
said  building. 

"Sec.  2.  Nothing  in  this  ordinance  contained  shall  be  construed 
as  waiving  any  of  the  rights  of  the  city  of  St.  Paul  in  and  to  the  real 
property  proposed  to  be  occupied  by  said  building.     *     *     *  " 

Thereupon  the  defendant  proceeded  and  erected,  and  has  ever  since 
maintained,  the  freight  house,  in  accordance  with  the  provisions  of 
the  ordinance. 

It  may  be  here  suggested  that  the  authority  of  defendant's  grantor, 
the  St.  Paul,  Minneapolis  &  Manitoba  Ry.  Co.,  under  its  charter 
(Laws  1857,  Ex.   Sess.,   c.   1),  "to   construct  its  railroad  upon  and 


USE    OF   STREETS  201 

along,  across  or  over  any  public  or  private  highway,"  etc.,  "if  the 
same  shall  be  necessary,"  does  not  extend  to  or  contemplate  the  con- 
struction upon  a  highway,  of  stations,  depots,  freight  houses,  or  other 
buildings,  but  applies  only  to  railroad  tracks,  where  the  use  of  the 
highway  by  the  railroad  company  will  be  concurrent  with  that  of  the 
general  public,  and  not  exclusive.  Village  of  Wavzata  v.  Great 
Northern  Ry.  Co.,  50  Minn.  438,  52  N.  W.  913.  It  is 'elementary  law 
that  a  municipal  corporation  has  no  proprietary  rights  in  the  streets, 
levees,  or  other  public  grounds  within  its  limits.  Whatever  rights 
it  has  it  holds  merely  in  trust  for  the  public.  It  is  equally  elementary 
that  all  its  powers  over  such  public  grounds  are  derived  from  the 
legislature.  It  can  exercise  no  power  over  them,  except  such  as  is 
given  it  by  the  legislature,  either  expressly  or  by  necessarv  implica- 
tion. It  is  also  w^ell  settled  that  a  grant  of  power  to  a  city  to  grant 
any  privileges  or  rights  in  streets  or  other  public  grounds  is  to  be 
strictly  construed,  and  not  enlarged  by  construction ;  and,  if  there  is 
a  fair  or  reasonable  doubt  as  to  the  existence  of  its  power,  it  will  be 
resolved  against  the  municipality.  Dill.  Mun.  Corp.  §  705 ;  City  of  St. 
Louis  V.  Bell  Tel.  Co.,  96  Mo.  623,  10  S.  W.  197,  2  L.  R.  A.  278,  9 
Am.  St.  Rep.  370. 

With  these  general  principles  in  mind,  we  come  to  the  considera- 
tion of  the  provisions  of  the  charter  of  the  city  of  St.  Paul  relating 
to  the  powers  of  the  city  council  over  public  grounds  within  its 
limits,  and  which  w-ere  in  force  in  1882,  when  Ordinance  No.  286 
was  passed.  The  charter  then  in  force  was  Sp.  Laws  1874,  c.  1,  and 
amendments.  Subchapter  4,  §  7,  of  that  act,  provided  that  "the 
common  council  shall  have  the  care,  supervision  and  control  of  all 
public  highways,  bridges,  streets,  alleys,  public  squares  and  grounds, 
and  parks  and  sewers,  and  all  other  public  improvements  and  public 
property  within  the  limits  of  said  city."  The  able  counsel  for  the 
defendant  seems  to  rely  with  confidence  on  this  as  giving  authority 
to  the  common  council  to  pass  the  ordinance  in  question.  He  says : 
"Statutory  provisions  of  this  kind  have  uniformly  been  held  to  con- 
fer upon  city  councils  authority  to  grant  the  railway  companies  the 
right  to  occupy  pul)lic  streets;  at  least,  as  against  the  city  and  the 
public." 

We  have  examined  all  the  authorities  cited  by  counsel,  and  sub- 
mit, with  all  deference  to  him,  that  none  of  them  support  his  conten- 
tion. Some  of  these  cases  merely  hold  that  a  certain  use  of  a  street, 
as  by  erecting  telephone  poles  and  wires,  or  constructing  a  horse 
railroad,  is  a  proper  "street  use,"  and  imposes  no  additional  servi- 
tude on  the  street ;  while  others  are  merely  to  the  effect  that,  under  a 
general  grant  of  power  to  regulate  the  use  of  streets,  the  city  coun- 
cil has  the  power  to  prescribe  the  manner  in  which.  f)r  the  conditions 
upon  which,  streets  mav  be  occupied  for  a  le^Mtimate  "street  use." 
In  Gregsten  v.  City  of  Chicago.  145  III.  451.  34  X.  E.  426,  36  Am. 
St.  Rep.  496,  the  city  had  an  express  grant  of  authority  to  do  what 


202  STREETS,  SEWERS,  PARKS,  AND    PUBLIC    BUILDINGS 

it  did.  In  St.  Louis  v.  W.  U.  Tel.  Co.,  149  U.  S.  465,  13  Sup.  Ct. 
990,  Z7  L.  Ed.  810,  the  only  thing  decided  was  that  the  city  was 
authorized  by  the  constitution  and  laws  of  Missouri  to  impose  upon 
a  telegraph  company  putting  its  poles  in  the  streets  of  the  city  a 
charge  in  the  nature  of  rental  for  the  use  of  the  streets  for  that  pur- 
pose. Neither  party  was  in  position  to  question  the  authority  of  the 
city  to  permit  the  company  to  place  its  poles  in  the  streets,  for  it 
was  by  virtue  of  the  exercise  of  this  power  that  the  city  claimed  the 
right  to  make  the  charge,  and  the  permit  granted  by  the  city  in  the 
exercise  of  this  assumed  power  constituted  the  only  right  on  the  part 
of  the  company  to  put  its  poles  in  the  street. 

We  are  of  the  opinion  that  the  "care,  supervision,  and  control"  of 
streets  and  public  grounds,  and  the  power  to  regulate  their  use, 
which  is  the  usual  and  ordinary  grant  of  power  to  municipal  corpora- 
tions, and  which  is  certainly  as  broad  as  the  power  granted  by  the 
section  above  quoted,  is  not  sufificient  to  empower  them  to  authorize 
the  use  of  such  grounds  for  the  purpose  even  of  constructing  and 
operating  thereon  a  commercial  railway,  much  less  of  erecting  there- 
on depots,  freight  houses,  or  other  buildings  which  exclude  the  gen- 
eral public  from  the  concurrent  use  of  a  part  of  the  street  or  other 
public  ground.  Dill.  Mun.  Corp.  §  705,  and  cases  cited;  Lackland 
V.  Railway  Co.,  31  Mo.  180.  In  this  state  these  would  not  be  proper 
"street  uses,"  but  the  imposition  of  an  additional  servitude  upon  the 
street.  Section  8  of  the  same  subchapter  of  the  city  charter  gives 
the  common  council  power  to  vacate  and  discontinue  public  grounds, 
etc.,  upon  certain  conditions,  but  it  will  not  be  claimed  that  this 
section  has  any  application  to  the  case  in  hand. 

The  only  other  provision  relating  to  the  power  of  the  common 
council  in  the  premises  is  section  11  of  the  same  subchapter,  which 
reads  as  follows :  "The  common  council  shall  have  power  and  au- 
thority by  a  vote  of  three  fourths  of  all  the  members  ^elect  of  said 
council  to  grant  the  right  of  way  upon,  over  and  through  any  of  the 
public  streets,  highways,  alleys,  public  grounds  or  levees  of  said  city 
to  any  steam  railway  or  horse  railway  company  or  corporation  upon 
such  limitations  or  conditions  as  they  may  prescribe  by  ordinance." 
We  may  consider  this  in  connection  with  Gen.  St.  1878,  c.  34,  §  47 
(Gen.  St.  1894,  §  2642),  cited  by  counsel  for  defendant,  and  which 
reads  as  follows :  "If  it  became  necessary  in  the  location  of  any 
part  of  a  railroad  to  occupy  any  road,  street,  alley  or  public  way  or 
any  part  thereof,  it  shall  be  competent  for  the  municipal  or  other 
corporation  or  public  officer  or  public  authorities  owning  or  having 
charge  thereof,  and  the  railroad  company  to  agree  upon  the  manner 
and  upon  the  terms  and  conditions  upon  which  the  same  may  be 
used  or  occupied;  or  such  company  may  appropriate  so  much  of 
the  same  as  may  be  necessary  for  the  purposes  of  said  road  in  the 
same  manner  and  upon  the  same  terms  as  is  herein  provided  for  the 
appropriation  of  the  property  of  individuals." 


USE    OF   STREETS  2G3 

Section  11  of  the  chapter  quoted  above  clearly  refers  only  to 
"trackage";  that  is,  to  the  right  to  construct  and  operate  railroad 
tracks  on  the  streets  or  other  public  grounds.  This  is  conclusively 
shown  by  the  term  "right  of  way."  It  does  not  give  the  common 
council  any  authority  to  barter  away,  or  transfer  to  a  railroad  com- 
pany, the  right  to  use  any  part  of  the  streets  or  public  grounds  as  a 
site  for  depots  or  freight  houses,  to  the  entire  exclusion  of  the  pub- 
lic therefrom.  This  seems  to  us  too  plain  to  require  argument. 
It  also  seems  to  us  that  the  provision  of  the  General  Statutes  cited 
is  subject  to  the  same  limitation.  The  phrase,  "in  the  location  of 
any  part  of  a  railroad,"  clearly  indicates  to  our  minds  that  this  also 
refers  only  to  "trackage,"  and  that  it  is  but  the  counterpart  and 
equivalent  of  section  11  of  the  city  charter.  It  was  never  intended 
to  authorize  municipal  authorities  to  sell  or  give  away  to  railroad 
companies,  as  sites  for  depots  and  other  buildings,  lands  in  which 
they  had  no  proprietary  interest,  and  which  they  held  merely  as  trus- 
tees for  the  public.  Any  such  power  would  be  an  exceedingly  dan- 
gerous one  to  vest  in  municipal  authorities,  and  it  would  require  very 
clear  language  to  that  etTcct  to  warrant  a  court  in  holding  that  the 
legislature  intended  to  grant  them  any  such  power.  W'liethcr  the 
authority  of  railway  corporations  to  acquire  rights  in  streets  and  oth- 
er public  lands  by  the  exercise  of  the  right  of  eminent  domain  is 
limited  to  "trackage"  or  "right  of  way,"  it  is  not  necessary  now  to 
consider.  If  there  is  any  other  provision  of  statute  containing  any 
grant  of  power  to  the  common  council  of  St.  Paul  over  public 
grounds  within  its  limits,  our  attention  has  not  been  called  io  it  by 
counsel,  neither  have  we  found  it.  Nowhere  do  we  find  any  grant 
of  power  authorizing  the  common  council  to  give  the  defendant  the 
right  to  use  and  occupy  any  part  of  the  public  levee  as  a  site  for  its 
freight  house.  It  follows  that  this  ordinance  is  invalid  because  not 
within  the  granted  powers  of  the  common  council. 

We  have  not  overlooked  the  dilTerence  between  a  "street"  and  a 
"levee."  A  street  is  designed  exclusively  for  the  purposes  of  travel 
and  intercommunication.  The  word  "levee,"  as  used  in  the  West 
and  South,  means  a  landing  place  for  vessels,  and  f(^r  the  delivery 
of  merchandise  to  and  from  such  vessels,  and,  as  incident  to  that,  for 
the  temporary  storage  of  the  merchandise.  Hence,  some  things 
might  be  a  proper  use  of  a  public  levee  which  wouUl  c(»nstitnto  a 
misuser  of  a  street.  For  example,  the  erection  and  maintenance  (^f 
a  warehouse  as  a  place  for  the  receipt  and  flelivery  and  tentporary 
storage  of  goods  while  in  transit  would  probably  be  a  proper  use  of 
a  levee,  provided  it  was  open  to  the  common  use  of  all  on  the  same 
terms.  This  would  be  in  aid  of  and  necessary  to  the  main  •)bject  for 
which  a  levee  is  flesigned.  I'.tit  this  is  a  very  difTerent  thing  from 
giving  to  a  particular  person  or  corporation  the  riglil  to  occujjy  a 
levee  as  a  site  for  its  warehouse  solely  for  its  own  business,  and  to 
the  exclusion  of  the  general  public,  as  was  attcmptetl  by  the  ordi- 


2G4  STREETS,  SEWERS,  PARKS,  AND    PUBLIC    BUILDINGS 

nance  in  question.  The  fact  that  the  common  council  stipulated  that 
a  small  part  of  the  structure  might  be  used  by  the  public  for  wharf- 
age and  transfer  purposes  does  not  alter  the  case. 

It  can  hardly  be  necessary  to  say  that  the  fact  that  the  defendant 
may  have  expended  its  money  on  the  faith  of  this  ordinance  creates 
no  equitable  estoppel  against  the  public,  whose  mere  trustee  the  city 
is  in  prosecuting  this  suit.  The  defendant  was  bound  to  take  notice 
of  the  extent  of  the  powers  of  the  common  council  from  which  it 
obtained  the  ordinance.  The  result  is  that  the  former  decision  is 
adhered  to,  although,  as  to  the  point  now  considered,  upon  a  dif- 
ferent ground. 


CITY  COUNCIL  OF  AUGUSTA  v.  BURUM. 

(Siipreme  Court  of  Georgia,  1893.     93  Ga.  G8,  19  S.  E.  820,  26  L,  R.  A.  340.) 

Petition  by  P.  &  G.  Burum  &  Co.  and  others  to  restrain  the  city 
council  of  Augusta  from  the  execution  of  a  resolution  providing  for 
the  removal  of  awnings  and  hanging  signs.  An  injunction  was 
granted,  and  defendant  brings  error. 

Lumpkin,  J.*  1.  By  a  special  act  approved  November  23,  1814 
(Acts  1814,  p.  36;  City  Code  Augusta,  p.  346),  "to  prevent  encroach- 
ments on  the  streets  and  highways  in  the  city  of  Augusta,  and  to  re-^ 
move  such  as  now  exist,"  the  municipal  authorities  of  that  city  were 
given  full  power  to  remove  any  "obstruction  or  encroachment  upon 
the  streets  or  highways,  within  the  limits  of  said  city,  at  the  expense 
of  such  person  or  persons  as  shall  cause  the  same."  The  method  of 
exercising  the  power  thus  conferred  is  pointed  out  in  section  6  of 
that  act,  which  declares  "that  the  said  city  council  of  Augusta  .shall 
have  full  power  and  authority  to  make  such  by-laws,  rules  and  regu- 
lations, as  they  may  deem  necessary,  fully  and  effectually  to  prevent 
encroachments  on  the  said  streets  and  highways  hereafter,  and  to  re- 
move such  as  now  exist,  and  such  as  may  hereafter  exist,  as  in  their 
opinion  may  be  least  burthensome  to  the  citizens,  and  best  calculated 
to  promote  the  good  order  and  welfare  of  said  city  and  its  inhabit- 
ants." Undoubtedly,  in  the  exercise  of  the  powers  incident  to  this 
grant  of  control  over  the  streets  of  the  city,  the  municipal  govern- 
ment could,  by  ordinance,  peremptorily  prohibit  the  erection  of  any 
awning,  of  whatever  material  or  however  constructed,  which  en- 
croached ever  so  little  upon  a  street  or  sidewalk ;  and,  as  to  an  awn- 
ing built  in  violation  of  such  ordinance,  the  city  authorities  could 
cause  the  same  to  be  summarily  torn  down,  with  or  without  notice 
to  the  owner. 

The  record,  however,  discloses  that  awnings  have  existed  in  Au- 
gusta from  a  time  "when  the  memory  of  man  runneth  not  to  the  con- 

4  Part  of  the  opinion  is  omitted. 


USE    OF   STREETS  2G5 

trary,"  and  that  no  oflficial  action  was  taken  by  council  in  respect  to 
such  structures  until  1857,  about  43  years  after  the  passage  of  the 
act  of  1814.  Prior  to  1857,  the  municipal  authorities  seem  to  have 
acquiesced  in  the  erection  of  such  awnings  as  property  holders  might 
deem  proper,  convenient,  and  safe.  Certain  it  is  that  no  ordinance 
having  direct  reference  to  awnings  was  adopted  until  the  year  last 
named,  when  it  was  ordained  that  "all  posts  and  rails  fixed  in  any 
street  for  the  purpose  of  supporting  any  awning  shall  be  round, 
turned  posts,  and  shall  be  placed  next  to  and  along  the  inside  of  the 
curb-stone,  and  shall  be  twelve  feet  in  height  above  the  sidewalks,  in- 
cluding the  rail  on  top;"  and  "no  portion  or  any  part  of  any  cloth  or 
canvas  used  as  an  awning  shall  hang  loosely  down  from  the  same 
over  the  sidewalk  or  foot-path."  Again,  in  1888,  after  the  lapse  of 
about  31  more  years,  another  ordinance  was  adopted,  in  which  it  was 
declared  that  "all  consents  or  permissions  heretofore  granted  by  the 
city  council,  or  by  the  board  of  fire  wardens,"  in  respect  to  the  erec- 
tion of  awnings,  be  revoked ;  and  "no  person  or  persons  shall  build 
or  erect  any  hanging  sign  or  signs,  awning  or  awnings,  on  the  streets 
of  this  city  without  first  obtaining  permission  from  the  streets  and 
drains  committee  of  council  and  the  board  of  fire  wardens  conjoint- 
ly, which  permission  may  be  revoked  at  the  pleasure  of  council." 
Notwithstanding  this  last  ordinance,  it  does  not  appear  that  any 
action  looking  to  the  removal  of  existing  awnings  was  taken  by  the 
city  authorities  until  the  28th  of  February,  1893.  when  council  ad(Ji)t- 
ed  a  resolution  in  these  words:  "Resolved,  that  all  wooden  awn- 
ings in  the  city,  i.  e.  over  streets  or  sidewalks,  be  taken  down  within 
sixty  days,  at  the  expense  of  the  owners."  The  petition  in  the  pres- 
ent case  was  brought  to  restrain  the  municipal  authorities  from  exe- 
cuting this  resolution,  which  is  in  the  nature  of  an  ordinance.  The 
injunction  prayed  for  was  granted,  and  the  city  council  exceptiVl. 

Petitioners,  among  other  things,  alleged  that  the  awnings  in 
question  were  erected,  at  consideral)le  expense,  with  tlu-  full  knowl- 
edge and  consent  of  the  city  authorities;  "that  the  last  erected  awn- 
ing of  petitioners  was  put  up  more  than  nine  years  ago,  and  most 
of  them  have  been  where  they  now  are  for  more  tlian  twenty  years, 
except  that  when  u'-w  material  was  inserted  therein  to  strengthen 
an  old  awning  or  r(l)uil(l  ;"  that  llicsr  awnings  are  in  gtxxl  order  and 
repair,  anrl  are  of  such  kind  as  have  customarily  been  constructed, 
and  allowefl  by  the  city  to  exist,  time  out  of  mind,  and  that  they 
offer  no  obstruction  to  the  full  and  free  enjoyment  of  the  streets  an«l 
sidewalks.  The  contention  of  petitioners,  therefore,  is  that  it  wouhl 
be  inequitable,  unjust,  and  oppressive  for  comicil  now  to  be  allowed 
to  capriciously  revoke  the  license  conferred,  and,  irresix-ctive  of  any 
necessity  for  so  doing,  to  summarily  destroy  their  property,  without 
compensation,  and  without  even  notice  to  them,  or  an  o|)portunity 
to  be  heard  ujkju  the  question  of  removing  their  awnings.  The  de- 
fendant, though  not  conceding  that  the  awnings  of  petitioners  were 


266  STREETS,  SEWERS,  PARKS,  AND    PUBLIC    BUILDINGS 

erected,  or  have  been  allowed  to  remain,  under  its  express  permis- 
sion, replies  that,  even  if  licenses  were  granted,  they  could  be  re- 
voked at  pleasure,  and  that,  in  the  exercise  of  the  police  powers  with 
which  the  municipal  authorities  are  vested,  the  awnings  could  be  re- 
moved summarily  without  notice  to  the  owners.  It  is  quite  certain 
from  the  record  that  if  the  awnings  involved  in  this  controversy  have 
any  rightful  existence,  it  can  be  accounted  for  only  on  the  assumption 
that  they  were  erected  under  license,  either  express  or  implied,  from 
the  city  government,  and,  no  matter  how  long  they  have  existed,  their 
continuance  must  be  referred  to  the  original  license,  or  to  a  renewal 
or  repetition  of  the  same.  The  question,  therefore,  is :  Can  the 
doctrine  of  estoppel,  under  these  circumstances,  be  invoked  to  prevent 
the  city  authorities  from  removing  encroachments  which,  undoubted- 
ly, as  an  original  question,  they  had  full  power  to  prevent?  or,  in 
other  words,  is  the  license  to  erect  and  maintain  these  awnings  per- 
petual and  irrevocable? 

In  answer  to  this  question,  we  will,  in  the  first  place,  remark  that 
no  express  legislative  authority  has  ever  been  conferred  upon  the 
city  government  to  grant  the  right  to  erect  and  perpetually  maintain 
awnings  over  the  sidewalks  of  the  city,  and,  this  being  so,  that  such 
authority  has  never  existed.  The  municipal  government  of  Augusta, 
irrespective  of  the  special  act  of  1814,  has,  we  presume,  as  the  au- 
thorities of  most  cities  have,  the  power  to  regulate  and  control  the 
streets  and  sidewalks.  Beyond  question,  the  city  council  of  Augusta, 
has,  by  virtue  of  that  special  act,  an  express  and  clear  legislative 
right  to  remove  obstructions  and  encroachments  on  the  streets.  This 
right  was  wisely  conferred  for  the  benefit  of  the  public,  to  whom  the 
streets  and  sidewalks  really  belong,  and  the  city  council  cannot,  in 
the  absence  of  clear  and  unequivocal  authority  from  the  legislature, 
perpetually  deprive  itself  of  this  right  by  ordinance,  contract,  or  oth- 
erwise. Public  policy  forbids  that  a  city  government  should  be 
allowed  to  part  with  any  of  its  powers  the  exercise  of  which  may  be 
necessary  to  secure  and  conserve  the  public  welfare ;  and  any  viola- 
tion of  this  policy  necessarily  tends  to  an  impairment  of  the  useful- 
ness and  efficiency  of  the  city  government,  and  consequently  to  de- 
feat, in  a  greater  or  a  less  degree,  the  very  purposes  for  which  it 
was  created.  In  the  absence  of  a  clear  grant  of  power  from  the  leg- 
islature, the  municipal  authorities  can  do  nothing  amounting,  in  ef- 
fect, to  the  alienation  of  a  substantial  right  of  the  public.  In  a  case 
like  that  of  Laing  v.  City  of  Americus,  86  Ga.  756,  13  S.  E.  107,  the 
applicability  of  the  doctrine  here  announced  is  clear  enough,  because 
there  the  obstruction  placed  upon  the  sidewalk  was,  without  doubt, 
a  nuisance  per  se ;  but,  for  the  purposes  of  the  present  case,  it  makes 
no  difference  whether  an  awning  is  a  nuisance  per  se  or  not.  In 
Hawkins  v.  Sanders,  45  Mich.  491,  8  N.  W.  98,  it  was  held  that  a 
wooden  awning  over  a  sidewalk,  in  front  of  a  store,  was  not. 


USE   OF   STREETS  2G7 

There  can,  however,  be  no  doubt  that  an  awning  of  any  kind,  ex- 
tending- over  a  sidewalk,  and  supported  by  posts,  is  an  encroachment, 
and  to  some  extent,  at  least,  an  obstruction ;  and  it  has  been  shown! 
we  think,  that  the  municipal  government  of  Augusta  has  never  had 
any  authority  to  grant  permission  to  any  of  its  citizens  to  erect  and 
maintain  in  perpetuity  any  such  encroachment  or  obstruction  in  that 
city.  It  is  equally  true,  we  think,  that  no  lapse  of  time  could  render 
valid,  so  as  to  become  irrevocable,  a  license  which  the  city  never  had 
the  power  to  grant  in  perpetuity.  Although,  in  Tennessee  v.  \'ir- 
gin,  36  Ga.  388,  this  court  held  that  as  to  actions  against  a  citizen 
the  latter  could,  under  the  act  of  1856  (Code,  §  2925a),  plead  the  stat- 
ute of  limitations,  and  that  in  Georgia  the  maxim  of  "nullum  tenipus 
occurrit  regi"  had  been  abrogated,  we  are  quite  certain  that  no  stat- 
ute of  limitations  or  prescription  of  any  kind  could  so  operate  as  to 
abridge  in  any  manner  the  exercise  of  the  legitimate  legislative  pow- 
ers of  the  state  conferred  by  the  people  for  the  common  welfare  of 
all.  In  this  sense,  at  least,  the  kindred  maxim  "nullum  tempus  oc- 
currit reipublicae"  is  still  of  force,  and  it  is  applical)le  to  a  city  coun- 
cil, so  far  as  its  legislative  powers  conferred  upon  it  by  statute  are 
concerned,  as  well  as  to  the  state  itself,  the  city  government  being, 
in  this  respect,  a  part  of  the  lawmaking  power  of  the  commonwealth. 
In  this  country  the  people  are  the  rulers, — the  source  of  all  power, — 
and  it  cannot  be  sound  doctrine  that  their  servants  in  any  lawmak- 
ing department  can,  by  the  lapse  of  time,  any  more  than  by  their  own 
action,  be  deprived  of  powers  the  exercise  of  which  are  essential  or 
necessary  to  the  proper  performance  of  their  duties  and  obligations 
to  the  public. 

2.  Having  shown  that  licenses  granted  by  the  city  council  of  Au- 
gusta to  erect  awnings,  whether  such  licenses  were  express  or  im- 
plied, could  not  for  any  reason  be  irrevocable,  we  will  now  slate  and 
briefly  discuss  another  principle  applicable  to  the  facts  of  the  present 
case.  We  think  that  where  citizens  of  Augusta,  with  the  permission 
of  the  city  authorities,  erected  awnings,  which,  of  course,  involved 
expense,  there  would  be  an  equitable  estnjipcl  against  a  needless  or 
capricious  revocation  of  the  permission  until  after  the  la|)se  f)f  suflFi- 
cient  time  to  allow  the  parties  incurring  the  expense  to  realize,  in 
the  use  and  enjoyment  of  their  awnings,  a  fair  return  for  their  out- 
lay. Whatever  may  be  the  law  in  other  jurisdictions,  it  is  now  well 
settled  in  Georgia  that,  as  between  private  persons,  a  parol  license, 
though  primarily  rev(jcable,  is  not  so  when  the  licensee  has  executed 
it,  and  in  so  doing  has  incurred  expense.  This  doctrine  was  an- 
nounced as  far  back  as  3  Ga.  82,  in  Sheffield  v.  Collier,  and  again 
in  Mayor,  etc.,  v.  Franklin,  12  Ga.  239.  in  which  Judge  Nishet  said: 
"The  rule  is.  as  stated,  that  a  parol  license  is  revocable;  hut  it  has 
some  exceptions.  It  the  enjoyment  of  it  must  be  preceded  necessarily 
by  the  expenditure  of  money,  and  the  grantee  has  made  improve- 
ments or  invested  capital  in  consequence  of  it,  it  becomes  an  a^rce- 


268  STREETS,  SEWERS,  PARKS,  AND    PUBLIC    BUILDINGa 

nient  for  a  valuable  consideration,  and  he  a  purchaser  for  value." 
Pages  242,  243.  See,  also,  Winham  v.  McGuire,  51  Ga.  578,  and 
Railroad  Co.  v.  Alitchell,  69  Ga.   114.     *     *     * 

The  spirit  of  the  principle  thus  announced  is,  w^ithin  the  limits  in- 
dicated, applicable  to  the  case  before  us.  The  city  council  could 
subserve  no  interest  of  the  public  by  allowing  awnings  to  be  erected, 
and  then,  immediately,  without  reason,  and  in  mere  caprice  or  wan- 
tonness,— if  such  a  thing  be  conceivable, — requiring  them  to  be  re- 
moved. Such  a  course  would  be  harsh  and  unjust,  without  excuse, 
and  unnecessary.  This  would  be  true  even  under  the  ordinance  of 
1888,  in  which  the  city  council  expressly  reserved  the  right  to  revoke 
at  pleasure  any  permission  which  might  be  given  for  the  erection 
of  awnings.  This  reservation  would  not  confer  upon  the  city  au- 
thorities any  right  by  granting  a  citizen  permission  to  erect  an  awn- 
ing, to  mislead  him  into  the  belief  that  he  would  be  allowed  to  en- 
joy it  for  at  least  a  reasonable  time,  and  then  wantonly  force  him  to 
destroy  a  structure,  to  erect  which  he  had,  on  the  faith  of  this  belief, 
incurred  expense.  It  is  also  established  and  sound  law,  however, 
that  a  verbal  license,  even  when  fully  executed,  is  not  necessarily 
forever  irrevocable.  In  Wingard  v.  Tift,  24  Ga.  179,  it  was  held 
that  a  verbal  license  to  erect  a  dam  and  fish  traps  was  not  a  license 
to  renew  the  same  after  they  had  been  washed  away  by  high  wa- 

Following  this  doctrine,  and  remembering,  for  the  reasons  already 
given,  that  the  city  authorities  are  not  to  be  held  as  strictly  to  the 
terms  of  licenses  granted  by  them  as  private  persons  would  be,  we 
are  satisfied  that  persons  who  have  been  allowed  to  reap  substantially 
the  benefits  of  the  money  they  have  expended  in  putting  up  awnings 
can  have  no  cause  of  complaint  that  the  city  thereafter  revokes  the 
permission  given  to  erect  them.  After  they  have  enjoyed  this  benefit, 
we  see  no  reason  why,  under  the  broad  powers  conferred  by  the  act 
of  1814,  the  city  government,  in  pursuit  of  a  policy  to  have  all  awn- 
ings in  the  city  constructed  of  such  materials  and  in  such  style  as  is 
deemed  proper  and  suitable  under  existing  conditions,  having  refer- 
ence to  the  convenience  of  the  public,  the  sightliness  of  the  streets, 
and  other  proper  and  reasonable  considerations,  may  not  cause  to  be 
removed  old  awnings,  which  had  already  been  permitted  to  stand  for 
many  years.  When  the  time  has  arrived  when  the  city  may  fairly  and 
in  good  faith  revoke  existing  licenses  to  maintain  these  structures, 
the  municipal  authorities  may  have  them  removed  as  encroachments 
upon  the  streets,  no  longer  authorized ;  and  if  the  owners,  after  rea- 
sonable and  fair  notice,  fail  or  refuse  to  remove  them,  the  city  may 
have  them  removed  at  their  expense.     *     *     *     Reversed. 


ABUTTING   OWNERS  2G9 


II.  Abutting  Owners  ' 


ZIMMERMAN  v.  METROPOLITAN  ST.  RY.  CO. 

(Kansas  City  Court  of  Appeals,  Missouri,  1911.     154  Mo.  App.  29(i.  134  S.  W. 

40.) 

Action  by  A.  D.  Zimmerman  against  the  Metropolitan  Street  Rail- 
way Company.    Judgment  for  plaintiff.    Defendant  appeals. 

Ellison,  J.«  In  the  month  of  October.  1903.  defendant  was  op- 
erating a  street  car  line  east  and  west  on  Fifteenth  street  in  Kansas 
City  at  a  point  where  that  street  intersects  Kensington  avenue.  On 
the  east  side  of  Kensington  avenue  and  south  side  of  Fifteenth  street 
was  a  car  barn  of  defendant,  used  for  the  purpose  of  storing  cars,  and 
for  such  other  purposes  as  are  incident  to  a  switchyard  of  a  street 
railway  company.  On  the  west  side  of  Kensington  avenue,  and  im- 
mediately south  of  Fifteenth  street,  plaintiff  had  the  ownership  and 
possession  of  a  tract  of  land  abutting  upon  Kensington  avenue  at 
said  point  132  feet,  and  situate  upon  this  abutting  property  are  two 
two-story  buildings,  to  which  buildings  ingress  and  egress  is  had  by 
way  of  Kensington  avenue. 

The  petition  alleges  that  the  defendant  had  no  legal  right  whatever 
to  construct  any  street  car  tracks  or  any  other  obstructions  in  Ken- 
sington avenue  along  and  in  front  of  the  plaintiff's  property ;  that  in 
the  month  aforesaid  the  defendant  began  the  construction  of  a  switch 
track  from  the  Fifteenth  street  tracks  at  a  point  slightly  west  of  the 
west  line  of  Kensington  avenue,  and  built  such  track  in  a  southeaster- 
ly direction  across  Kensington  avenue  at  a  point  a  little  south  of  the 
.south  line  of  Fifteenth  street,  which  track,  as  so  constructed,  enti-rcd 
into  the  barn  of  defendant.  After  the  switch  track  had  bi-en  laid 
down,  defendant  began  the  construction  of  a  spur  track  in  Kensing- 
ton avenue,  branching  off  in  a  southerly  direction  from  the  south  side 
of  the  switch  track,  and  then  plaintiff  tiled  his  petition  in  the  circuit 
court  asking  to  enjoin  defendant  from  further  constructing  "car  tracks 
in  said  Kensington  avenue,  and  from  tiie  obstruction  aufl  destruction 
of  said  Kensington  avenue  as  a  public  highway;  that  defendant  he 
ordered  to  remove  all  tracks  and  other  obstructions  placed  in  said 
Kensington  avenue,  and  to  restore  said  Kensington  avenue  to  the 
condition    in    which    it    was   previous    to    the    acts    herein   complain- 

C(\   of."       *       *       * 

After  filing  the  petition  defendant  ceased  to  further  (hg  r.i  i\ensing- 
ton  avenue  or  further  construct  tracks  there  until  December  4.  \'K)^, 
on  which  date  there  was  ai)proved  by  the  mayor  of  Kansas  City  an 

r- For  (llsriissioii  of  princii.Ic.H,  st-o  Coolpy.  Mun.  Corp.  I   HO. 
8  I'art  of  the  oiiinion  l.s  (uiiilted. 


270  STREETS,  SEWERS,  PARKS,  AND    PUBLIC    BUILDINGS 

ordinance  styled  "An  ordinance  granting  permit  to  the  Metropolitan 
Street  Railway  Company  to  lay  and  maintain  a  spur  track  on  Kensing- 
ton avenue  south  of  Fifteenth  street,"  which  permit  recites  that  the 
company  owned  190  feet  fronting  on  the  east  side,  and  that  the  track 
is  permitted  to  be  constructed  along  in  front  of  said  190  feet  on 
Kensington  avenue,  with  turnouts  to  the  car  barn  of  said  Metropolitan 
Street  Railway  Company. 

Between  the  date  of  granting  of  said  permit,  and  the  trial  of  the 
cause,  the  spur  tracks  in  Kensington  avenue  were  actually  constructed 
by  defendant  as  plaintitT  alleged  in  his  petition  would  be  done.  De- 
fendant was  shown  by  the  evidence  to  be  using  the  street  as  a  depot 
yard  for  the  purpose  of  shunting  cars,  and  cleaning  them  and  storing 
them,  as  plaintiff  in  his  petition  alleged  would  be  done.  On  the  show- 
ing of  these  facts,  the  trial  court  issued  an  injunction  in  words  as 
follows:  "It  is  ordered,  adjudged  and  decreed  that  defendant  be 
permanently  enjoined  from  storing  or  washing  cars  on  any  part  of 
Kensington  avenue,  between  Fifteenth  and  Sixteenth  streets,  in  Kan- 
sas City,  Missouri,  and  that  they  be  permanently  enjoined  from  stand- 
ing cars  on  said  parts  of  said  Kensington  avenue.     *     *     * 

The  evidence  does  not  show  that  plaintiff  acquiesced  in  these  acts 
of  defendant.  The  evidence  showed  that  for  all  practical  purposes 
the  defendant  took  possession  of  that  part  of  Kensington  avenue 
whereon  plaintiff's  property  abuts.  By  the  construction  of  tracks 
leading  from  its  main  tracks  on  Fifteenth  street,  over  Kensington 
avenue  into  its  car  barn,  it  well  nigh  destroyed  the  safe  ingress  and 
egress  to  plaintiff's  property  by  himself  or  by  those  connected  with 
him  socially  and  in  a  business  way.  It  is  not  meant  to  say  that  de- 
fendant so  obstructed  the  way  that  plaintiff  could  not  possibly  get  to 
and  from  his  property,  or  that  others  could  not  do  so.  They  could 
have  gotten  to  the  property  by  necessary  effort,  if  defendant  had  in- 
closed it  with  a  wall,  or  had  surrounded  it  with  a  stream  of  water. 
But  a  property  owner  is  entitled  to  a  safer  and  more  convenient  use 
of  an  abutting  street  than  that.  He  is  entitled  to  have  it  not  material- 
ly obstructed.  "An  abutting  property  owner  has  the  same  right  to 
use  of  the  street  that  the  public  has ;  in  addition  thereto,  he  has  rights 
which  are  special  to  himself,  and  the  right  of  ingress  and  egress,  and 
this  right  is  a  property  right,  which  he  may  protect."  Schopp  v.  City 
of  St.  Louis,  117  Mo.  131,  22  S.  W.  898,  20  L.  R.  A.  783;  Lackland 
V.  Railway,  31  Mo.  180;  Lockwood  v.  Wabash  Ry.,  122  Mo.  86,  26 
S.  W.  698,  24  L.  R.  A.  516,  43  Am.  St.  Rep.  547;  De  Geofroy  v. 
Merchants'  Bridge  &  Ter.  Ry.  Co.,  179  Mo.  698,  79  S.  W.  386,  64 
L.  R.  A.  959,  lOi  Am.  St.  Rep.  524;  Realty  Co.  v.  Deere  &  Co.,  208 
Mo.  66,  106  S.  W.  496,  14  L.  R.  A.  (N.  S.)  822.  "An  obstruction  in 
a  street  or  highway  may  be  both  a  public  and  a  private  nuisance,  and, 
in  such  cases,  the  private  citizen  who  is  especially  injured  may  have 
injunctive  relief."  Schopp  v.  St.  Louis,  supra;  Cummings  v.  St. 
Louis,  90  Mo.  259,  2  S.  W.  130. 


ABUTTING    OWNERS  271 

We  have  considered  the  matter  of  the  permit  granted  by  the  city 
to  construct  the  tracks  in  controversy.  A  municipal  permit  to  put 
structures  in  or  on  the  streets,  cannot  be  allowed  to.destrov  the  use 
of  abutting  property  by  its  owner.  A  municipality  cannot  legally  au- 
thorize the  creation  or  maintenance  of  a  nuisance.  It  cannot  author- 
ize the  construction  and  operation  of  a  railway  which  will  necessarily 
destroy  it  as  a  public  way  and  deprive  abutting  owners  of  access  to 
their  property ;  and  the  use  may  be  restrained  by  injunction.  Lock- 
wood  V.  Railway,  supra;  Dubach  v.  Railroad,  89  Mo.  483.  1  S.  W.  86; 
Belcher  v.  Elevator  Co.,  82  Mo.  121 ;  Schopp  v.  St.  Louis,  supra ; 
Sherlock  v.  K.  C.  Belt  Ry.  Co.,  142  Mo.  172,  43  S.  W.  629,  64  Am. 
St.  Rep.  551. 

A  street  railway  com.pany  cannot  be  legally  authorized  to  establish 
structures  in  the  streets  for  the  convenience  of  the  road,  which  ma- 
terially affect  an  abutting  property  owner's  use  of  his  property.  If 
such  company  must  have  such  structures,  it  must  procure  ground  not 
owned  by  the  public  for  the  use  of  the  inhabitants  generally.  Lack- 
land V.  Xorth  Mo.  Ry.  Co..  31  :\Io.  180,  186. 

We  think  no  estoppel  against  plaintiff  was  shown.  The  judgment 
was  for  the  right  party,  and  is  affirmed. 


STATE  (IVIXS  et  al.,  Pro.secutors)  v.  CITY  OF  TREXTON. 
(Supreme  Court  of  New  Jersey,  1002.    (JS  X.  J.  Ljiw.  r»01.  ".;!  .Vtl.  20i;.> 

Certiorari  to  review  a  city  ordinance  by  Minor  H.  Ivins  and  oth- 
ers, as  prosecutors,  against  the  inhaljitants  of  the  city  of  Trenton. 

HiCNDRicKSON,  J.''  The  prosecutors  seek  to  set  asitlc,  as  invalid, 
an  ordinance  of  the  city  of  Trenton  approved  March  18.  l'>02.  The 
ordinance  ordains  that  the  erection,  etc..  of  any  stationary  or  swinging 
sign,  or  any  stationary  awning,  shed,  or  other  obstruction,  across  the 
whole  or  any  portion  of  any  sidewalk  within  that  jiortion  of  the  city 
of  Trenton  embraced  witiiin  certain  bounds  defined  in  the  ordinaticc. 
shall  be  deemed  and  is  thereby  declared  to  be  a  nuisance.  It  contains 
provisions  empowering  and  directing  the  police  department  t<>  pre- 
vent such  erections  or  other  obstructions  across  the  whole  or  any 
portion  of  any  sidewalk  within  saifl  boimds.  and.  to  remove  any  such 
erection  or  obstruction  there  existing  in  front  of  any  building  where 
the  owner  or  occupant  neglects  or  refuses  to  remove  the  same  after 
10  days'  notice  in  writing.  A  penalty  of  $20  is  alsf)  added  in  case  of 
such  neglect  fjr  refusal  after  notice.  The  j)rosecutors  arc  the  owners 
of  a  brick  store  building  anrl  lot  known  as  No.  120  North  I'ro.id  >>lrcct, 
in  said  city,  where  for  several  years  they  have  conducted  the  Itusincss 
of  flealers  in  fruits,  vegetables,  and  produce.  They  have  an  awninjj 
in   front  of  their  premi.ses,  2S   feet   11   inches  long,  consisting  of  an 

'  I';!rt  of  flic   ojilnloi)   is   (»niltl«'<l. 


272  STREETS,  SEWERS,  PARKS,  AND    PUBLIC    BUILDINGS 

iron  frame  and  roof,  covered  with  boards  and  tin,  14  feet  in  height 
next  to  the  building  and  12  feet  in  height  at  the  curb,  and  extending 
over  the  whole  sidewalk.  This  awning  was  constructed  by  the 
grantor  of  the  prosecutors  in  1886,  and  has  been  maintained  there 
ever  since. 

It  is  contended  that  the  ordinance  is  invalid,  in  that  it  is  not  general, 
fair,  or  impartial,  but  discriminates  against  individuals  within  a  por- 
tion of  the  city,  who  are  to  suffer  oppressive  interference  in  the  en- 
joyment of  their  property,  while  those  who  live  in  the  remaining  ter- 
ritory of  the  city  are  left  entirely  free  from  such  interference.  In 
support  of  this  contention  the  prosecutors  cite  Dill.  Mun.  Corp.  (4th 
Ed.)  §  322,  where  the  principle  is  laid  down  that:  ''As  it  would  be 
unreasonable  and  unjust  to  make,  under  the  same  circumstances,  an 
act  done  by  one  person,  penal,  and  if  done  by  another,  not  so,  ordi- 
nances which  have  this  effect  cannot  be  sustained.  Special  and  un- 
warranted discrimination  or  oppressive  interference  in  particular  cases 
is  not  to  be  allowed."  This  is,  without  doubt,  a  well-established  doc- 
trine ;  and,  if  the  ordinance  in  question  is  within  the  principle  here 
delineated,  it  must  fail.  But  is  it?  The  map  presented  to  us  shows 
that  the  district  covered  by  the  ordinance  includes  parts  of  four  differ- 
ent wards  of  the  city,  and  is  located  at  its  business  center,  and  includes 
a  large  portion  of  the  principal  business  streets.  The  principle  above 
alluded  to  as  affecting  municipal  legislation  is  not  universal  in  its 
application  to  all  conditions,  and  will  not  necessarily  render  an  ordi- 
nance discriminating  because  it  affects  a  certain  class,  or  is  applicable 
only  to  a  certain  designated  district  or  to  a  certain  street.  The  gen- 
eral and  special  character  of  an  ordinance  must  be  determined  by  the 
facts  of  each  case,  and  not  by  any  fixed  rule.     *     *     * 

Applying  this  view  to  the  case  in  hand,  we  think  a  city  council  of  a 
populous  and  growing  city  might  reasonably  conclude  that  a  measure 
so  restrictive  as  this  was  necessary  for  public  convenience  in  the 
crowded  thoroughfares  of  the  city,  but  was  not  necessary  in  the  less 
crowded  streets,  or  in  those  where  business  places  were  less  numerous. 
If  we  could  discover  from  the  facts  before  us  that  this  ordinance  was 
a  mere  act  of  caprice  on  the  part  of  the  council,  and  that  in  it  there 
was  an  evident  intent  not  to  legislate  in  the  interest  of  the  general 
public,  but  to  strike  at  the  prosecutors,  it  would  be  our  duty  to  con- 
demn the  ordinance.  But  since  no  such  condition  appears,  we  cannot 
interfere  with  the  ordinance  upon  the  ground  just  discussed.     *     *     * 

The  ordinance  is  further  attacked  on  the  ground  that  it  is  unreason- 
able. In  support  of  this  averment,  the  point  already  discussed  is  re- 
newed, and  it  is  further  urged  that  the  ordinance  is  an  unjust  and 
oppressive  interference  with  the  business  of  the  prosecutors  and  their 
property  rights.  This  position  might  appeal  to  us  more  strongly  if 
the  ordinance  in  question  was  not  clearly  within  the  powers  delegated 
to  the  city  by  the  legislature.  The  charter  of  the  city  of  Trenton  (P. 
L.  1874,  p.  331),  after  granting  to  the  common  council  power  to  make 


ABUTTING    OWNERS  273 

ordinances  and  by-laws  for  the  purposes,  among  others,  of  preventing 
and  removing  all  encroachments,  obstructions,  and  incumbrances  upon 
the  streets  of  the  city,  defines  a  further  purpose  for  which  such  ordi- 
nances may  be  passed,  as  follows :  "To  prevent  or  regulate  the  erec- 
tion or  construction  of  any  stoop,  step,  platform,  bay  window,  cellar 
door,  area,  descent  into  a  cellar  or  basement,  sign  or  any  post  or  erec- 
tion, or  any  projection,  in,  over  or  upon  any  street  or  avenue,  and  to 
remove  the  same  where  already  erected,  at  the  expense  of  the  owner 
or  occupant  of  the  premises."  It  will  thus  be  seen  that  the  ordinance 
in  question  is  phrased  almost  in  the  very  words  of  the  charter,  and 
that  it  is  clearly  within  the  power  granted.  Under  such  circumstances, 
the  presumption  is  that  the  ordinance  is  reasonable ;  and  unless  it  is 
clearly  shown  that  the  ordinance  itself,  or  the  mode  of  its  operation, 
is  unreasonable,  the  court  will  not  interfere.  Paxson  v.  Sweet,  13 
N.  J.  Law,  196;  Trenton  Horse  R.  Co.  v.  Inhabitants  of  Citv  of 
Trenton,  53  N.  J.  Law,  132,  20  Atl.  1076,  11  L.  R.  A.  410;  Traction 
Co.  V.  City  of  Elizabeth,  58  N.  J.  Law.  619,  34  Atl.  146. 

There  are  no  special  facts  brought  before  us,  bearing  upon  the 
question,  except  the  nature  of  the  business  of  the  prosecutors,  and 
the  fact  stipulated  that  245  different  persons  own  overhead  awnings 
and  swinging  signs  within  the  territory  defined.  We  do  not  regard 
the  latter  fact  as  very  convincing  upon  the  charge  of  unreasonableness. 
While  we  realize  that  such  an  ordinance  may  disturb  somewhat,  and 
perhaps  annoy,  the  proprietors  of  business  houses  affected  thereby, 
still  it  must  be  perceived  that  these  erections  may  obstruct  the  streets 
in  the  congested  centers  of  a  populous  city,  and  inconvenience  large 
bodies  of  people  who  are  entitled  to  the  free  and  uninterrupted  use 
of  the  streets  for  travel  or  passage.  Regard  must  be  had,  also,  to  the 
fact  that  such  erections,  when  largely  multiplied,  may  mar  the  api)ear- 
ance  of  city  streets,  and  may,  through  decay  or  want  of  repair,  become 
unsightly,  and  perhaps  unsafe  to  the  pedestrian,  and  that  they  may 
obstruct  the  view,  and,  to  a  degree,  shut  off  light  and  air  from  persons 
residing  upon  the  street,  in  close  proximity.  These  are  (|ucstions  that 
may  justly  be  considered  by  the  city  authorities  in  deciding  Ji|)on  the 
propriety  of  such  an  ordinance,  and  hence  we  conclude  that  the  i)n)S- 
ecutors  have  failed  to  clearly  demonstrate  the  charge  that  the  ordi- 
nance is  unreasonable. 

With  regard  to  the  suggestion  that  the  ordinance  is  inconsistent 
with  the  abutter's  property  interests,  we  think  the  proposition  is  clear 
ly  untenable.  The  title  of  the  abutting  owner  may  run  to  tlic  center  of 
the  street,  as  it  generally  does,  but  his  rights  must  always  be  sul)- 
servient  to  the  public  easement.  He  may  make,  as  of  right,  all  proper 
uses  of  the  street,  subject  to  the  paramount  right  of  the  public  user, 
and  subject,  also,  to  reasonable  and  proper  municipal  and  police  regu- 
lation. 2  Dill.  Mun.  Corp.  656a;  Wcller  v.  McCormick.  52  N.  J. 
Law,  470,  19  Atl.  1101.  78  L.  R.  A.  798.  In  the  latter  case,  Mr.  Jus- 
CooLEY  Ca.ses  Mun.C. — IS 


274  STREETS,  SEWERS,  PARKS,  AND    PUBLIC    BUILDINGS 

tice  Dixon,  in  discussing  the  rights  of  the  abutting  owner,  says,  "He 
may  use  the  highway  in  front  of  his  premises,  when  not  restricted  by 
pubHc  enactment,  for  loading  and  unloading  goods,  for  vaults  and 
chutes,  for  awnings,  for  shade  trees,  etc.,  but  only  on  condition  that 
he  does  not  unreasonably  interfere  with  the  safety  of  the  highway  for 
public  travel."  No  decision  has  been  cited,  and  we  know  of  none  in 
this  state,  which  asserts  the  doctrine  that  the  exercise  of  such  rights 
by  the  abutting  owner  is  not  subject  to  municipal  control.  Other  au- 
thorities supporting  this  view  are  Pedrick  v.  Bailey,  12  Gray  (Mass.) 
161;  Drake  v.  City  of  Lowell,  13  Mete.  (Mass.)  292;  City  Council  v. 
Burum,  93  Ga.  68,  19  S.  E.  820,  26  L.  R.  A.  340;  Farrell  v.  City  of 
New  York,  52  Hun,  611,  5  N.  Y.  Supp.  580;  Id.  5  N.  Y.  Supp.  672; 
and  other  cases  cited  in  note  7  of  15  Am.  &  Eng.  Enc.  Law  (2d 
Ed.)  499. 

The  case  of  State  v.  Higgs,  126  N.  C.  1014,  35  S.  E.  473,  48  L. 
R.  A.  446,  was  cited  in  behalf  of  the  prosecutors,  where  an  ordinance 
forbidding  the  suspension  of  signs  over  sidewalks  was  held  invalid, 
as  not  being  within  the  chartered  powers  of  the  municipality.  This 
decision  was  reached  by  a  divided  court,  and  is  clearly  distinguishable 
from  the  case  we  are  considering. 

The  result  is  to  affirm  the  ordinance,  with  costs.* 

8  Affirmed  by  the  Court  of  Errors  and  Appeals,  69  N.  J.  Law,  451,  55  Atl. 
1132  (1903). 


TORTS  275 


TORTS 
I.  Governmental  and  Municipal  Duties  Distinguished  ^ 


CITY  OF  KANSAS  CITY  v.  LEMEN. 

(Circuit   Court  of  Appeals  of  the   United   States.    Eighth   Circuit.    1S03.     57 

Fed.  905,  6  C.  C.  A.  627.) 

In  Error  to  the  Circuit  Court  of  the  United  States  for  the  Western 
District  of  Missouri. 

Action  at  law  by  Frank  Lemen  against  the  city  of  Kansas  City, 
Mo.,  for  wrongfully  closing  an  exhibition  held  by  plaintiff  in  said 
city.     Verdict  and  judgment  for  plaintitt.     Defendant  brings  error. 

Before  Caldwell  and  Sanborn,  Circuit  Judges,  and  Tiiaykr, 
District  Judge. 

Thayer,  District  Judge. ^  Frank  Lemen  filed  in  the  United 
States  circuit  court  for  the  western  district  of  Missouri  a  com- 
plaint against  Kansas  City,  a  municipal  corporation  of  the  state  of 
Missouri,  wherein  he  alleged  substantially  the  following  facts:  That 
he  was  a  citizen  and  resident  of  the  state  of  Kansas,  and  the  propri- 
etor of  a  show  and  hippodrome;  that,  desiring  to  exhibit  said  show 
in  Kansas  City,  Mo.,  on  the  3d  and  4th  days  of  May,  1892,  he,  before 
that  time,  lawfully  acquired  from  the  owners  of  a  certain  tract  of 
land  situated  within  the  corporate  limits  of  Kansas  City  the  right 
to  give  an  exhibition  thereon,  and  that  he  took  peaceable  possession 
of  said  land  with  the  consent  of  the  owner,  and  erected  his  tents 
thereon,  and  that  he  also  fully  complied  with  all  of  the  ordinances 
and  regulations  of  the  city  with  reference  to  such  exhibitions  as  he 
proposed  to  give,  and  obtained  a  license  for  the  c.Nliibition  fmm  the 
proper  city  authorities,  entitling  him  to  give  two  exhibitions,  for 
which  he  paid  to  the  city  $20;  but  that  on  the  day  appointed  for 
the  exhibition,  and  just  before  it  was  to  begin,  "the  defcn<laiH. 
Kansas  City,  acting  by  and  through  its  mayor,  police,  and  other  (hdy 
constituted  and  authorized  agents,  (the  said  mayor.)  personally  con- 
senting and  directing  all  things,  did  willfully,  with  knowledge  that 
they  were  acting  wrongfully,  and  without  right,  and  with  the  inten- 
tion to  harass  and  oppress  the  plaintiff,  and  to  break  up  and  ruin 
his  said  business,  with  force  and  violence  come  u|)on  said  lan<l.  and 
with  threats  and  violence  did  stop  jjlainliff  from  prosecuting  his  said 
business,  and  did  put  a  stop  to  the  exhibition  of  the  said  show,  and 

1  For  fliscussion  of  prlnrlplcs,  see  Cooley,  Mun.  Corp.  i|  115  117. 

2  Tiiit  i.f  Uie  opinion  l.s  omitted. 


276  TORTS 

did  then  and  there  threaten  and  began  to  tear  down  and  break  and 
destroy  plaintiff's  said  tents  and  property,  and  did  with  force  seize  upon 
the  person  of  the  plaintiff  and  arrest  him,  falsely  pretending  that 
he  had  violated  some  city  ordinance,  *  *  *  2Lnd  did  threaten 
to  arrest  and  imprison  plaintiff's  employes  unless  they  desist  from 
carrying  on  plaintiff's  said  business,  falsely  pretending  that  such  em- 
ployes thereby  were  violating  some  ordinance  of  Kansas  City;  and 
did  stop,  prevent,  and  warn  the  people  from  coming  into  plaintiff's 
said  show,  and  from  purchasing  tickets  thereto,  *  *  *  ^j^jj  com- 
pel and  require  plaintiff  to  cancel  his  appointments  to  exhibit  his 
show  at  the  place  and  times  aforesaid,  and  to  remove  all  his  prop- 
erty and  effects  from  said  tract  of  land,  and  did  greatly  injure  and 
discredit  his  said  business,"  etc.     *     *     * 

The  city  admitted  its  corporate  capacity,  and  that  the  plaintiff  in- 
tended, and  had  in  fact  made  preparations,  to  give  an  exhibition  at 
the  time  and  place  stated  in  his  complaint.  It  denied,  however,  that 
the  plaintiff  had  the  consent  of  the  owner  of  the  tract  of  land  de- 
scribed in  his  complaint  to  give  an  exhibition  thereon,  and  averred, 
to  the  contrary,  that  the  title  to  said  tract  of  land  was  vested  in 
the  city,  as  trustee,  to  be  held  for  the  purposes  of  a  graveyard,  and 
that  it  had  been  so  vested  and  held  for  more  than  30  years,  and  that 
the  remains  of  many  persons  had  been  buried  therein,  and  that  many 
were  still  entombed  in  said  tract  of  land.  The  city  further  admit- 
ted that  a  license  was  issued  by  it  to  the  plaintiff  to  give  an  exhibi- 
tion on  said  ground,  and  that  he  had  paid  $20  therefor;  but  it  aver- 
red that  the  city  had  no  power  to  issue  a  license  for  a  show  in  a 
graveyard ;  and  that  the  police  of  the  city  had  notified  the  plaintiff, 
prior  to  the  intended  exhibition,  that  he  could  not  give  an  exhibition 
on  the  ground  selected,  because  it  was  a  graveyard,  and  because  an 
exhibition  in  such  place  would  be  a  public  nuisance,  whereupon  the 
plaintiff  had  withdrawn  from  said  premises,  and  had  removed  his 
tents  elsewhere  to  a  place  within  the  city,  and  had  given  an  exhibi- 
tion for  two  days  under  the  license  in  question.     *     *     * 

The  distinction  that  exists  between  the  various  powers  ordinarily 
exercised  by  municipal  corporations  has  been  pointed  out  on  nu- 
merous occasions,  and  is  well  defined.  In  exercising  certain  powers, 
such  corporations  act  for  the  public  at  large  as  governing  agencies, 
and  for  that  reason,  when  so  acting,  they  cannot  be  held  liable  for 
a  misfeasance.  When  acting  in  a  public  capacity,  as  governing  agen- 
cies, the  rule  of  respondeat  superior  has  no  application  to  acts  done 
by  the  officers  of  such  corporations,  but  the  responsibility  for  a  wrong- 
ful act  rests  with  the  officer,  and  not  with  the  municipality.  In  the 
exercise  of  many  other  powers  devolved  upon  municipal  corporations, 
commonly  termed  "corporate  powers,"  such  bodies  act  for  the  spe- 
cial benefit  of  the  municipality,  or  the  municipality  derives  some  profit, 
emolument,  or  advantage  from  their  exercise,  and  in  such  cases  the 


GOVERNMENTAL  AND  MUNICIPAL  DUTIES  DISTINGUISHED         277 

municipality  is  liable  for  acts  of  misfeasance  done  by  its  ofticers  that 
are  positively  injurious  to  individuals. 

In  Maxmilian  v.  Alayor,  62  N.  Y.  160,  20  Am.  Rep.  468,  Folger, 
J.,  says:  "There  are  two  kinds  of  duties  which  are  imposed  upon 
a  municipal  corporation :  One  is  of  that  kind  which  arises  from  the 
grant  of  a  special  power,  in  the  exercise  of  which  the  municipaliiy 
is  as  a  legal  individual.  The  other  is  of  that  kind  which  arises  or  is 
implied  from  the  use  of  political  rights  under  the  general  law,  in 
the  exercise  of  which  it  is  as  a  sovereign.  The  former  power  is 
private,  and  is  used  for  private  purposes;  the  latter  is  public,  and 
is  used  for  public  purposes.  *  *  *  i,-,  t^g  exercise  of  the  former 
power,  and  under  the  duty  to  the  public  which  the  acceptance  and 
use  of  the  power  involves,  a  municipality  is  like  a  private  corpora- 
tion, and  is  liable  for  failure  to  use  its  power  well,  or  for  any  injury 
caused  by  using  it  badly;  but  where  the  power  *  *  *  is  con- 
ferred not  for  the  immediate  benefit  of  the  municipality,  but  as  a 
means  to  the  exercise  of  the  sovereign  power  for  the  benefit  of 
all  citizens,  the  corporation  is  not  liable  for  nonuser  nor  for  misuser 
by  the  public  agents" — citing  Eastman  v.  Meredith,  36  X.  H.  2S4,  72 
Am.   Dec.    302. 

The  distinction  thus  referred  to  is  also  recognized  in  the  state  from 
which  this  case  comes,  (Hannon  v.  County  of  St.  Louis,  62  Mo.  313, 
318,)  and  is  stated,  and  supported  by  numerous  citations,  in  Dillon 
on  Municipal  Corporations,  (vide  4th  Ed.  §§  966-968,  974.) 

In  the  case  at  bar  we  feel  constrained  to  hold  that  the  wrongful 
act  complained  of  was  done  by  the  city  under  color  of  a  power  which 
it  exercises  as  a  governing  agent  for  tlie  benefit  of  the  public  ai 
large,  and  not  for  the  advantage  of  the  inhabitants  of  Kansas  City, 
except  as  they  form  a  part  of  the  general  public.  The  establish- 
ment of  a  public  show,  such  as  a  menagerie,  circus,  or  hippodrome, 
on  a  tract  of  land  dedicated  to  a  city  or  town  for  the  purposes  of  a 
graveyard,  and  actually  used  as  such,  would  constitute  a  pnl)lic  nui- 
ance.  A  city  has  no  more  right  to  license  a  show  of  tliat  nature  in 
a  graveyard  than  it  has  to  license  it  to  locate  on  the  public  streets 
and  thoroughfares;  and  we  entertain  no  doubt  that  when  a  munic- 
ipality undertakes  to  prevent  or  to  abate  a  nuisance  of  that  kiiul  by 
means  of  its  police  force  it  is  acting  for  the  state  as  a  govcrninj^ 
agency,  and  not  merely  in  the  discharge  of  a  purely  corj)oratc  power 
or  duty.     *     *     ♦ 

In  a  comi)arativcly  recent  case — Culver  v.  City  of  Streator,  130 
III.  238,  22  N.  1-:.  810,  6  L.  R.  A.  270— it  was  held  that  the  city  was 
not  liable  for  the  negligent  act  of  one  of  its  police  ofliccrs  while 
endeavoring  to  enforce  an  ordinance  forliidding  dogs  to  run  at  lar^e 
without  being  nuizzled.  for  the  reason  that  in  the  making  and  en- 
forcement of  the  ordinance  the  city  was  acting  merely  as  agent  of 
the  state  in  the  discharge  of  duties  imposed  by  law  for  the  promo- 
tion of  the  general  welfare.     The  court  said  that  the  ordinance  was 


278  TORTS 

passed  in  pursuance  of  the  police  power  vested  in  the  municipahty, 
and  that  acts  performed  in  the  exercise  of  that  power  were  done  in 
a  pubHc  capacity  as  a  governing  agency,  and  not  for  the  special 
advantage  of  the  municipality. 

It  is  also  very  generally  held  that  a  city  is  not  liable  for  wrong- 
ful acts  committed  by  its  police  officers  in  enforcing  city  ordinances, 
or  in  making  arrests  for  alleged  violations  of  law  or  local  ordinances, 
or  while  endeavoring  to  suppress  an  unlawful  assemblage,  because 
while  acting  in  such  matters,  police  officers  are  not  mere  servants  of 
the  municipality,  and  the  rule  of  respondeat  superior  does  not  apply. 
Buttrick  V.  City  of  Lowell,  1  Allen  (Mass.)  172,  79  Am.  Dec.  721 ; 
Fox  V.  Northern  Liberties,  3  Watts  &  S.  (Pa.)  103 ;  Calwell  v.  City 
of  Boone,  51  Iowa,  687,  2  N.  W.  614,  33  Am.  Rep.  154;  Odell  v. 
Schroeder,  58  111.  353;  Elliott  v.  Philadelphia,  75  Pa.  347,  15  Am. 
Rep.  591;  Dargan  v.  Mobile,  31  Ala.  469,  70  Am.  Dec.  505;  Little 
v.  City  of  Madison,  49  Wis.  605,  6  N.  W.  249,  35  Am.  Rep.  793; 
Trammell  v.  Russellville,  34  Ark.  105,  36  Am.  Rep.  1 ;  Worley  v. 
Inhabitants,  88  Mo.  106;    Dill.  Mun.  Corp.  §  975. 

We  can  entertain  no  doubt,  therefore,  that  for  the  acts  complained 
of  in  the  present  case  there  is  no  right  of  redress  against  the  city, 
assuming  them  to  have  been  done  or  authorized  by  the  city,  as  stated 
in  the  plea,  for  the  purpose  of  preventing  a  public  exhibition  on  a 
tract  of  land  dedicated  and  used  as  a  graveyard.  The  act  of  the 
municipality  in  that  behalf  was  an  exercise  of  a  power  vested  in  it 
to  promote  the  general  welfare,  as  contradistinguished  from  those 
corporate  powers  which  it  exercises  for  the  special  advantage  of  the 
municipality.     *     *     * 

Furthermore,  if  it  be  true,  as  suggested,  that  the  city  knew  that 
the  premises  were  not  a  graveyard,  and  that  they  were  in  fact  pri- 
vate property,  and  that  it  had  some  ulterior  object  in  view,  and 
intended  to  wrong  and  oppress  the  plaintiff,  then  it  is  difficult  to 
escape  the  conclusion  that  the  acts  said  to  have  been  committed  by 
the  police  with  the  sanction  of  the  mayor  were  so  utterly  beyond 
the  scope  of  any  corporate  power  vested  in  the  municipality,  that  it 
could  not  be  held  liable  on  that  ground.     Dill.  Mun.  Corp.  §§  968-970. 

Our  conclusion  is  that  the  circuit  court  erred  in  refusing  to  di- 
rect the  jury  to  find  a  verdict  in  favor  of  the  city,  wherefore  the 
judgment  of  the  circuit  court  is  reversed,  and  the  cause  remanded, 
with  directions  to  grant  a  new  trial. 


GOVERNMENTAL  AND  MUNICIPAL  DUTIES  DISTINGUISHED         279 


ADDINGTON  v.  TOWN  OF  LITTLETON. 

(Supreme  Court  of  Colorado,  1911.     50  Colo.  623.  115  Pac.  89G,  34  L.  R.  A. 

[N.  S.]  1012,  Ann.  Cas.  1912C,  753.) 

Action  by  Bella  D.  Addington  against  the  Town  of  Littleton.  From 
a  judgment  in  favor  of  defendant,  plaintiff  brings  error. 

]\Iu5SER,  J.  This  was  an  action  to  recover  damages  from  the  de- 
fendant town  for  injuries  inflicted  by  a  vicious  dog  running  at  large. 
The  complaint  alleges  that  an  ordinance  in  the  town  of  Littleton 
provided  that  no  dog  should  be  permitted  to  run  at  large  in  the  town 
without  a  license  tag,  that  it  was  the  duty  of  the  town  marshal  and 
all  police  officers  to  take  up  and  confine  all  dogs  found  running  at 
large  contrary  to  the  ordinance,  that  it  was  unlawful  for  any  vicious 
dog  to  run  at  large  within  the  town  limits,  and  that  it  was  the  duty 
of  the  marshal  and  police  officers  to  kill  any  vicious  dog  found  run- 
ning at  large.  The  complaint  further  alleges  that  the  town  neglected 
to  enforce  the  ordinance  and  violated  its  duties  and  obligations  in 
that  respect,  by  knowingly  permitting  an  unlicensed  and  vicious  dog 
to  run  at  large  on  the  streets,  and  that  while  the  plaintiff  was  walking 
in  the  town  she  was  attacked  by  this  vicious  dog  antl  received  the 
injuries  complained  of.  A  demurrer  was  sustained  to  this  comi^laint. 
Plaintiff  elected  to  stand  thereon.  Judgment  was  entered  against 
her,  and  she  has  brought  the  matter  to  this  court  for  review  on  error. 

The  duty  imposed  by  the  ordinance  upon  the  marshal  and  police 
officers  to  take  up  or  kill  vicious  dogs  found  running  at  large  in 
the  street  was  imposed  under  the  governmental  powers  of  the  town, 
and  not  in  its  private  corporate  capacity.  This  being  so,  it  is  not 
liable  for  the  failure  of  its  officers  to  enforce  the  ordinance. 

The  plaintiff  argues  that  the  town  is  liable  for  injuries  caused  by 
a  failure  to  keep  its  streets  in  a  safe  condition  for  travel.  The  man- 
ner in  which  a  street  is  used  is  a  different  thing  from  its  condition 
as  a  street.  The  construction  and  maintenance  of  a  .street  in  a  rea- 
sonably safe  condition  for  travel  is  a  coriiorate  duty,  and  for  a 
breach  of  such  duty  an  action  will  lie;  but  making  ami  enforcmg 
ordinances  regulating  the  use  of  streets  brings  into  exercise  govern- 
mental and  not  corporate  powers,  and  for  any  act  or  omission  of  <luty 
in  regard  to  the  enforcement  of  such  ordinances  there  is  no  habilily 
in  the  absence  of  a  statute  imposing  one.  McAuliffc  v.  City  "^  Victor. 
15  Colo.  App.  3.37,  62  Pac.  231;  Denver  v.  Maurer.  47  C',".  209. 
106  Pac.  .S75,  135  Am.  St.  Rep.  210;  Denver  v.  Davis.  Z7  C«.lo.  370. 
86  Pac.  1027,  6  L.  R.  A.  (N.  S.)  1013,  119  Am.  St.  Rep.  293.  11  Ann. 
Cas  187;  2  Dill.  Mun.  Corp.  (4th  Ivl.)  §  950;  Hall  v.  Town  of  Wood- 
bine, 61  Iowa,  83,  15  N.  W.  846.  47  Am.  Rep.  805;  Rivers  v.  City 
Council  of  Augusta,  65  Ga.  376.  38  Am.  Kci*.  7><7 ;  J...u-s  v.  City  of 
Williamsburg,  97  Va.  722,  34  S.  E.  883,  47  L.  R.  A.  294;  Lafaycllc 
v.  Timberlake,  88  Ind.  330. 

The  judgment  is  therefore  affirmed. 


2S0  TOUTS 


CUNNINGHAM  v.  CITY  OF   SEATTLE. 

(Supreme  Court  of  Washiugtou,  1905.    40  Wash.  59,  82  Pac.  143,  4  L.  R.  A. 

[N.    S.]   G29.) 

Action  by  R.  Cunningham  against  the  city  of  Seattle.  From  a 
judgment  for  plaintiff,  defendant  appeals. 

Crow,  J.  Respondent  instituted  this  action  against  the  city  of 
Seattle,  appellant,  to  recover  damages  occasioned  by  a  certain  horse 
trespassing  upon  and  destroying  respondent's  lawn.  On  trial  the 
court  made  findings  of  fact  to  the  effect  that  on  September  6,  1904, 
appellant  city  was  maintaining  near  respondent's  residence  a  certain 
engine-house  as  a  part  of  its  fire  department,  and  keeping  there  nu- 
merous horses;  that  on  said  date,  through  the  negligence  of  said 
city,  one  of  said  horses  trespassed  upon  respondent's  lawn,  by  run- 
ning over,  tearing  up,  and  destroying  the  same;  and  that  said  horse 
was  owned,  kept,  and  used  by  said  city  exclusively  in  said  fire  de- 
partment. Upon  said  findings  judgment  was  entered  in  favor  of 
respondent,  and  this  appeal  has  been  taken. 

It  clearly  appears  from  the  evidence  that  said  horse  was  in  the 
exclusive  charge,  care,  and  control  of  the  regular  employes  of  said 
fire  department.  Appellant  contends  that  no  negligence  on  the  part 
of  the  city  or  its  employes  has  been  shown ;  but,  without  passing 
on  that  question,  we  will,  in  disposing  of  this  case,  accept  the  findings 
as  made  by  the  trial  court.  Appellant  further  contends  that,  even 
though  negligence  be  conceded,  still  it  is  not  liable  to  respondent  for 
any  damage  caused  by  its  employes  in  the  maintenance  and  operation 
of  its  fire  department.  This  contention,  we  think,  should  be  sustained. 
The  maintenance  of  a  fire  department  by  a  municipal  corporation  is 
the  exercise  of  a  public  or  governmental  function,  "The  rule  is  gen- 
eral that  a  municipal  corporation  is  not  liable  for  alleged  tortious 
injuries  to  the  persons  or  property  of  individuals,  when  engaged 
in  the  performance  of  public  or  governmental  functions  or  duties." 
20  Am.  &  Eng.  Ency.  of  Law  (2d  Ed.)  1193. 

The  only  question  here  is  whether  appellant  is  liable  for  damage 
done  to  respondent's  property  by  reason  of  negligent  acts  of  the  mem- 
bers of  its  fire  department.  Under  the  authorities  this  question  has 
been  almost  uniformly  answered  in  the  negative.  The  Supreme  Court 
of  Ohio  in  Frederick  v.  City  of  Columbus,  58  Ohio  St.  546,  51  N. 
E.  35,  says:  "The  ground  on  which  the  nonliability  of  municipal  cor- 
porations is  placed  in  such  cases  is  that  the  power  conferred  on  them 
to  establish  a  department  for  the  protection  of  the  property  of  its 
citizens  from  fire  is  of  a  public  or  governmental  nature,  and  liability 
for  negligence  in  its  performance  does  not  attach  to  the  municipality 
unless  imposed  by  statute.  The  nonliability  of  the  city  in  such  cases 
rests  upon  the  same  reasons  as  does  that  of  the  sovereign  exercising 
like  powers,  and  are  distinguished  from  those  cases  in  which  powers 


CARE    OF   STREETS  2J>1 

are  conferred  on  cities  for  the  improvement  of  their  own  territory 
and  the  property  of  their  citizens." 

The  holdings  of  this  court  have  been  to  the  same  effect.  Lawson 
V.  Seattle,  6  Wash.  185,  33  Pac.  347 ;  Russell  v.  Tacoma,  8  Wash. 
156,  35  Pac.  605,  40  Am.  St.  Rep.  895;  Simpson  v.  Whatcom,  33 
Wash.  392,  74  Pac.  577,  63  L.  R.  A.  815,  99  Am.  St.  Rep.  951 ; 
Lynch  v.  City  of  North  Yakima,  37  Wash.  657,  80  Pac.  79,  12  L. 
R.  A.  (N.  S.)  261.  In  Lynch  v.  City  of  North  Yakima,  this  court, 
speaking  by  Root,  J.,  said:  "But  it  may  generally  be  accepted  that 
a  city  is  not  liable  for  an  improper  discharge  by  its  officers  of  a  purely 
governmental  function.  The  duties  of  an  officer  or  employe  of  a 
fire  department  are  regarded  as  for  the  benefit  of  the  community,  and 
not  for  the  mere  advantage  of  the  municipality  as  a  corporate  bodv. 
The  city,  possessing,  as  it  does,  a  portion  of  the  sovereignty  of  the 
state,  in  the  exercise  thereof  provides  and  maintains  a  fire  department. 
The  services  of  this  department  are  for  the  benefit  of  all  persons  who 
may  have  property  in  the  city  limits  capable  of  injury  by  fire.  It 
would  seem,  therefore,  that  in  creating,  maintaining,  and  operating 
the  fire  department  the  city  was  exercising  governmental  functions." 

Under  the  above  authorities,  we  think  the  city  of  Seattle  was 
not  liable  to  respondent  for  damages  resulting  from  negligent  acts 
of  the  employes  in  its  fire  department.  The  trial  court,  therefore, 
erred  in  entering  judgment  for  said  respondent.  The  judgment  is 
reversed,  with  instructions  to  dismiss  the  action.' 


II.  Care  of  streets  * 


JACKSON  V.  CITY  OF  GREENVILLE. 

(Supreme  Court  of  Mi.ssissipitl.  1,S94.     12  Miss.  21i(),  Hi  South.  ;;vj.  I'T  !>,  It.  .\. 

5L'7,  48  Am.   SI.   IC.-i'.   ■":!.) 

Action  by  D.  D.  Jackson  against  the  city  of  Crcenvillc.  i-"runi  a 
judgment  in  favor  of  defendant,  plaintiff  ajjpeals. 

Woods,  J.''  This  action  was  brought  by  the  appellant  f<.r  tin- 
recovery  of  damages  for  injuries  sustained  by  him  in  consequence  of 
defects  in  a  sidewalk  in  the  city  of  C.rccnville.  negligetitly  suffered  to 
exist.  *  *  *  Was  the  appellant,  at  the  time  of  rerriving  the  in- 
jury, making  such  use  of  the  street  and  sidewalk  as  will  entitle  liiin  to 
a  recovery  for  hurt  suffered  by  reason  of  defects  in  the  sidew.iJk.'' 

a  The  (llssfiitliiK  opinion  of  UiulUIn,  J..  Ih  iinilllcd.  Ilihnirliik'  «lfiii«'<l 
Miinh  r,.  ]!»()(;.  S«-f  41i  Wiisli.  l.'JJ.  M  I'ur.  (HI.  4  L.  U.  A.  (N.  8.)  020,  7 
Ann.   CiiH.  SO."). 

*  For  discussion  of  priMcl|>l«'S,  .'<«•«  Took-y,  .Muu.  Corp.  i   IIS. 

6  Purt  of  the  opinion  Is  omitted. 


282  TORTS 

It  is  elementary  law  that  streets  are  primarily  designed  to  be  used 
for  purposes  of  transportation  and  travel ;  and  the  authorities  are  uni- 
form to  the  efi["ect  that,  in  the  absence  of  any  express  statute  creating 
liability,  municipal  corporations,  clothed  with  plenary  and  exclusive 
control  over  their  streets,  are  yet  liable,  by  implication,  for  injuries 
resulting  to  persons  properly  using  such  streets,  for  failure  to  main- 
tain the  same  in  a  reasonably  safe  condition  for  travel.  That  the 
rule  as  stated  is  substantially  recognized  and  applied  by  the  courts  in 
cases  of  statutory  and  of  implied  liability  will  appear  by  examination 
of  the  adjudications  of  courts  of  last  resort  in  both  classes,  and  any 
seeming  want  of  harmony  will,  in  most  instances,  appear  to  have 
arisen  from  failure  to  confine  the  language  of  the  several  courts  to 
the  facts  of  the  particular  case.  What  are  the  facts  as  shown  in  the 
evidence  introduced  on  trial  below  by  the  appellant,  which  are  sup- 
posed by  counsel  for  appellee  to  bar  any  recovery  herein?     *     *     * 

The  case  thus  presented  is  that  of  a  man  of  full  age  using  the  side- 
walk, not  for  the  purpose  of  travel,  either  for  business  or  exercise  or 
pleasure,  but  for  the  sole  purpose  of  playing  with  a  dog.  The  appel- 
lant had  come  out  of  his  boarding  house  to  the  sidewalk.  He  was 
standing,  and  was  not  going  anywhere.  He  was  playing  with  the  dog, 
and  was  standing  with  his  back  to  the  roadway,  and  his  face  turned 
towards  the  palings,  when,  in  an  effort  to  catch  the  dog,  running  be- 
tween him  and  the  fence,  he  stepped,  and  received  his  injury.  Can  it 
be  satisfactorily  gathered  from  the  above  statement  that  the  appellant, 
when  hurt,  was  making  such  reasonable  use  of  the  street  or  its  side- 
walk, at  the  time  of  receiving  the  injury  complained  of,  as  will  bring 
him  within  the  category  of  those  for  whom  streets  and  sidewalks  are 
designed  ?  Was  he  a  traveler  on  or  along  the  street,  who,  incidentally 
halting  or  turning  aside  upon  his  way,  received  his  hurt?  Was  the 
municipality  under  any  duty  to  the  appellant  to  keep  in  repair  the  side- 
walk so  that  he  might  safely  use  it  for  the  purpose  of  his  play  with 
the  dog? 

Streets,  we  repeat,  are  designed  for  travel,  primarily ;  and  though  it 
must  be  conceded  that  one  using  the  street  for  travel  may  incidentally 
cease  to  move  on  continuously,  and  yet  not  lose  his  right  as  a  traveler 
on  the  highway,  yet  it  cannot  be  deduced  from  this  concession  that 
one  not  using  the  street  for  travel  may,  nevertheless,  convert  it,  or 
part  of  it,  into  a  playground,  and  in  so  using  it,  if  injury  occur  while 
so  using  or  misusing  the  street,  by  reason  of  defects  in  it,  hold  the 
negligent  municipality  liable.  To  recover,  the  injured  party  must  fix 
liability  upon  the  municipality ;  and,  to  fix  liability,  the  sufferer  must 
show  failure  on  its  part  to  discharge  a  duty  to  him.  But  the  duty  to 
repair  and  keep  in  reasonably  safe  condition  streets  and  sidewalks  is 
due  only  to  those  using  the  highways  for  the  purposes  of  their  crea- 
tion. If  a  football  team  appropriate  a  street  to  its  uses  in  playing  a 
game,  and  one  of  the  players  fall  into  a  hole  in  the  roadway,  and  in- 
jury result,  would  any  one  be  found  to  say  that  he  could  rightfully 


CARE    OF   STREETS  2S3 

complain  and  recover?  In  such  case  the  injured  player  clearly  would 
be  frustrating  the  very  end  for  which  highways  are  ordained,  viz.  the 
convenient  and  safe  transportation  and  travel  of  property  and  per- 
sons. It  seems  to  us  indisputable  that  one  contravening  the  law  of  the 
creation,  and  the  ends  for  which  it  was  created,  cannot  be  heard  to 
complain  if  ill  befall  him  because  of  his  own  wrongdoing. 

Many  cases  have  been  examined  by  us  where  liability  was  imposed 
and  recovery  had  for  injuries  to  children,  not  of  the  age  of  discretion, 
when  playing  on  the  streets  or  highways ;  but  all  such  cases,  on  well- 
understood  legal  principles,  are  readily  distinguishable  from  the  case 
at  bar.  Chicago  v.  Keefe,  114  111.  222.  2  N.  E.  267,  55  Am.  Rep.  860. 
and  Indianapolis  v.  Emmelman.  108  Ind.  530,  9  X.  E.  155,  58  Am. 
Rep.  65,  cited  in  the  brief  of  appellant's  counsel,  are  of  this  character. 
Our  own  adjudications  are  along  the  same  line,  in  like  cases.  Mack- 
ey  v.  City  of  Vicksburg,  64  Miss.  711,  2  South.  178;  \'icksburg  v. 
McLain,  67  Miss.  4,  6  South.  774. 

When  we  come  to  consider  the  cases  referred  to  by  the  counsel 
wherein  adults  received  injuries  in  streets,  we  shall  discover  that  none 
of  them,  on  their  facts,  at  all  resemble  the  case  at  bar.  The  sinewy, 
lucid,  and  caustically  humorous  opinion  in  \'arncy  v.  Manchester,  58 
N.  H.  430,  40  Am.  Rep.  592,  was  upon  these  facts,  in  a  word,  viz.: 
Varney,  the  plaintiff,  went  to  a  certain  street  in  Manchester  for  the 
purpose  of  seeing  a  procession  form  on  Decoration  Day.  He  went 
down  one  side  of  the  street  to  the  place  where  the  procession  was 
forming,  and  crossed  over  the  street  to  get  a  better  view,  lie  stood 
looking  at  the  forming  of  the  procession,  near  a  pile  of  lumber ;  and. 
after  so  standing  and  looking  from  three  to  five  minutes,  the  lumber 
fell,  and  crushed  his  foot.  Held,  that  a  person  is  "traveling  upon  a 
highway"  when  he  is  making  a  reasonable  use  of  a  hif,dnvay  as  a  way. 
and  that  the  law  does  not  prescribe  how  long  one  may  stand  on  a 
street  without  ceasing  to  use  the  way  as  a  way ;  but  that  the  question 
was  one  of  reasonable  use,  and  this  was  for  a  jury's  determination, 
if  there  is  any  evidence  on  which  they  could  properly  find  the  use  was 
reasonable. 

The  case  of  Murray  v.  McSlianc.  ':^2  Md.  217.  is  that  of  an  adult 
lawfully  passing  along  a  street,  and  stopping  for  an  instant  on  a  door- 
sill  of  a  house  fronting  the  street,  for  the  purpose  i)f  adjusting  his 
shoe,  and  suffering  injury  in  con.se(|nence  of  a  brick  falling  from  a 
dilapidated  wall,  negligently  permitted  to  remain  there.  Held,  that 
travelers  on  a  street  have  not  only  the  right  to  pass,  but  to  stoj)  on 
necessary  and  reasonable  occasions,  so  they  do  not  obstruct  the  street 
or  doorway. 

In  HufTy  v.  City  of  Dubuque,  63  Iowa,  171.  18  N.  W.  f>00.  50  Am. 
Rci).  743.  the  facts  were  that  DufTy.  who  was  a  workman.  wct)t  to 
the  corner  of  the  two  intersecting  streets  for  the  pur|.ose  of  d<.inK 
some  work  on  a  house  there  situated.  After  he  had  unloaded  some 
stufT  from  a  wagon,  he  went  along  the  sidewalk  to  a  hydrant  cipht  feet 


284  TORTS 

in  rear  of  the  house  and  a  foot  or  two  from  the  line  of  the  sidewalk. 
While  in  the  act  of  drawing  water  from  the  hydrant,  with  one  foot 
on  the  ground,  and  the  other  on  the  sidewalk,  a  section  of  a  roof,  neg- 
ligently left  standing  near,  was  blown  over  by  a  gust  of  wind,  fell  on 
Duffy,  and  inflicted  the  injuries  of  which  he  complained.  Held,  that 
Duffy's  stopping  to  draw  water  as  stated  was  the  exercise  of  a  privi- 
lege which  he  might  lawfully  enjoy,  and  was  a  mere  incident- to  the 
general  use  of  the  street  which  he  was  making. 

The  opinions  of  the  New  England  courts,  when  liability  in  the  char- 
acter of  cases  which  we  are  considering  is  of  statutory  creation,  and 
in  which,  as  is  sometimes  charged,  extreme  and  antiquated  views  are 
announced,  it  will  be  found,  on  careful  analysis,  are  not  out  of  general 
accordance  with  the  spirit  of  the  most,  not  to  say  all,  of  the  decisions 
elsewhere  which  we  have  examined.  In  the  case  of  Blodgett  v.  City 
of  Boston,  8  Allen  (Mass.)  237,  while  the  court  deny  the  liability  of 
the  city  for  injuries  received  by  a  boy  11  years  old,  who  was  using 
the  plank  sidewalk  on  the  street  with  another  boy  for  purpose  of  play 
only,  yet  the  opinion  is  careful  to  limit  the  effect  of  the  decision  by 
saying :  "We  do  not  certainly  think  any  narrow  or  restricted  significa- 
tion should  be  given  to  the  word  'traveler,'  as  used  in  the  statute.  It 
may  well  embrace  within  its  meaning,  as  applied  to  the  subject-matter, 
every  one,  whatever  may  be  his  age  or  condition,  who  has  occasion  to 
pass  over  the  highway  for  any  purpose  of  business,  convenience,  or 
pleasure.  *  *  *  \Ye  by  no  means  intend  to  say  that  a  child  who 
receives  an  injury  caused  by  a  defect  or  want  of  repair  in  a  road  or 
street,  while  passing  over  or  through  it,  would  be  barred  of  all  rem- 
edy against  a  town  merely  because,  at  the  time  of  the  occurrence  of 
the  accident,  he  was  also  engaged  in  some  childish  sport  or  amuse- 
ment. There  would  exist  in  such  case  the  important  element  that  the 
person  injured  wa':;  actually  traveling  over  the  way.  But  this  element 
is  wholly  wanting  in  the  case  at  bar." 

Here,  as  in  the  case  just  quoted  from,  the  important  element  of 
actual  use  of  the  way  for  the  purpose  of  travel  is  wholly  absent. 
Here,  as  there,  the  case  shows  an  appropriation  of  a  sidewalk  to  a 
use  other  than,  and  inconsistent  with,  that  for  which  the  highway 
was  established.  Here,  however,  the  offender  against  the  rights  of 
the  public  was  an  adult,  and  not  a  child  of  debatable  discretion.  Here, 
in  addition,  the  play  with  the  dog  was  not  a  mere  incident  to  the  gen- 
eral and  proper  use  of  the  sidewalk  by  the  appellant  in  passing  along 
or  over  it.  The  city  owed  him  no  duty,  in  his  situation,  and  using  the 
street  as  he  was  doing.  The  duty  was  on  the  municipality  to  keep  and 
maintain  the  street  in  reasonably  safe  repair  for  travel,  and  liability 
ensued  upon  injury  befalling  one  going  along  or  over  it,  whether  for 
purposes  of  business  or  pleasure,  by  reason  of  failure  to  keep  and 
perform  this  duty.  But  to  one  simply  using  the  street  or  sidewalk  as 
a  playground  the  city  owed  no  duty  to  keep  its  streets  for  him  so  en- 
gaged in  any  repair.    Affirmed. 


CARE   OF   STREETS  2S5 

TICK  V.  BAY  CITY. 

(Supreme  Court  of  Michigan,  1891.    84  Mich.  461.  47  X.  W.  10C2.) 

Morse,  J.®  This  case  has  been  in  this  court  once  before,  and 
will  be  found  reported  in  78  Mich.  209,  44  N.  \\\  52. 

The  plaintiff  sues  for  damages  occasioned  by  her  foot  being  caught 
in  a  hole  in  the  sidewalk  upon  the  east  side  of  Jefferson  street,  in  Hay 
City,  at  a  point  about  midway  between  two  gates,  leading  into  the 
county  jail  premises,  the  gates  being  75  feet  apart.  Two  facts  are 
settled  beyond  dispute  by  the  record:  First,  that  the  plaintiff  was 
injured  by  getting  her  foot  into  a  hole  in  the  sidewalk  in  the  locality 
described  in  her  declaration ;  and.  secondly,  that  there  was  no  proof 
that  any  officer  of  the  city  had  actual  knowledge  of  the  existence  of 
this  hole  prior  to  the  accident.  There  is  no  claim  of  any  contributory 
negligence  on  the  part  of  the  plaintiff",  and  the  main  issue,  therefore, 
was  whether  the  hole  had  existed  in  the  sidewalk  so  long  that  the  city 
was  in  duty  bound  to  take  notice  of  its  existence.     *     *     * 

The  accident  to  plaintiff  occurred  on  the  6th  day  of  December.  1S87. 
The  law  of  1887,  creating  a  liability  in  cases  of  defective  sidewalks, 
took  effect  September  28,  1887.  Testimony  was  introduced  on  the 
part  of  the  plaintiff  tending  to  show  that  the  defect  in  the  sidewalk, 
of  which  she  complained,  existed  in  the  months  of  May.  June,  July, 
and  August,  1887.  This  testimony  was  objected  to.  and  the  court  was 
asked  to  instruct  the  jury  that  they  could  not  consider  the  evidence  as 
to  the  condition  of  the  sidewalk  in  those  months,  because  at  that 
time  the  city  was  not  liable  for  any  defects  in  the  sidewalk.  This  re- 
quest was  properly  refused.  If  this  hole  existed  prior  to  Sejitembcr 
28,  1887,  and  continued  up  to  December  6,  1S87.  the  city  was  n<n  only 
bound  to  take  notice  of  it.  but  in  law  had  ample  time  between  these  last 
two  dates  to  repair  the  sidewalk.  The  defendant  was  not  autlu^rizod 
to  leave  the  sidewalk  as  it  was  on  the  day  the  law  took  effect.  If. 
after  that,  the  city  continued  to  maintain  the  sidewalk,  it  was  its  duty 
to  put  it  in  good  repair,  and  to  keep  it  reasonably  safe  for  public 
travel;  and  the  length  of  time  it  had  been  out  of  ri-i)air  was  a  le^^ili- 
mate  subject  of  inciuiry,  without  reference  to  the  date  that  the  law 
went  into  effect. 

Objection  is  also  made  that  testimony  was  admitted  of  the  condi- 
tion of  the  walk  at  other  places  than  where  the  injury  occurred.  The 
evidence  was  not  only  confined  to  the  space  belween  the  two  ti-Uvs. 
but  to  near  the  middle  of  such  space.  The  testimony  developed  that 
there  was  more  than  one  hole  there,  and  some  of  the  witnesses,  not 
knowing  in  which  hole  the  i)laiiitiff  was  injured,  were  interrogated  on 
both  sides  as  to  the  location  of  the  holes  they  observed;  but  the  jury 
were  instructed  that  plaintiff  could  not  recover  iniless  the  city  had 
knowledge,  actual  or  constructive,  of  the  idenlical  hole  into  which  the 

•  Part  of  the  opinion  l.s  onillt«'«l. 


280  TORTS 

plaintiff  stepped,  and  that  the  existence  of  the  other  holes  was  not 
permitted  to  be  used  to  show  notice  of  this  particular  defect.  There 
was  therefore  no  error  in  the  admission  of  this  testimony. 

The  defendant's  counsel  asked  the  following  instruction  to  the 
jury:  "If  you  find  that  the  street  commissioner  went  over  this  walk 
within  two  weeks  previous  to  the  accident,  that  he  looked  out  for  de- 
fects in  a  careful  manner,  and  did  not  see  this  defect,  and  had  no 
actual  knowledge  of  its  existence,  then  he  used  such  care  and  diligence 
as  was  required  of  him,  and  the  city  is  not  liable;"  which  request  the 
court  gave,  with  the  following  addition:  "But  in  determining  the  fact 
whether  he  did  go  over  it  within  two  weeks,  and  did  look  out  for  de- 
fects in  a  careful  manner,  and  did  not  see  this  particular  defect,  you 
may  consider  all  the  testimony  in  the  case  as  to  the  existence  of  the 
hole  previous  to  the  time  he  went  over  the  place,  and,  if  you  find  the 
hole  was  there  when  he  examined  it,  you  may  consider  this  in  deter- 
mining whether  he  did  use  due  care."  This  addition  was  good  law, 
and  very  properly  made  under  the  circumstances,  there  being  testi- 
mony in  the  case  that  the  hole  had  been  there  for  months.  *  *  * 
Affirmed. 


JONES  V.  CITY  OF  CLINTON. 

(Supreme  Court  of  Iowa,  1S9G.    100  Iowa,  333,  69  N.  W.  418.) 

Action  at  law  to  recover  damages  alleged  to  have  been  sustained 
by  the  plaintiff  by  being  thrown  out  of  a  buggy  while  traveling  on 
one  of  the  streets  of  the  defendant  city.  There  was  a  trial  by  jury ; 
verdict  and  judgment  for  the  plaintiff.     Defendant  appeals. 

RoTHROCK,  C.  J.^  The  plaintiff  and  one  Jackson,  while  riding 
along  one  of  the  streets  of  Clinton  in  a  buggy,  drove  the  horse  into 
an  open  ditch  or  trench,  and  they  were  thrown  out  of  the  vehicle  in 
which  they  were  riding,  and  the  plaintiff  claims  that  she  was  serious- 
ly injured.  The  action  is  grounded  upon  the  alleged  negligence  of 
the  city  in  not  protecting  the  traveling  public  from  injury  by  reason 
of  the  trench  in  the  street.  The  accident  occurred  in  the  evening, 
between  twilight  and  dark.  There  were  lights  in  some  of  the  stores 
on  the  street.  No  lights  were  necessary  to  discover  the  trench  in 
the  street.  The  earth  taken  from  the  excavation  was  deposited  in 
the  street.  A  man  on  a  load  of  hay,  across  the  street,  saw  the  ob- 
struction, and  called  aloud  to  Jackson,  warning  him  of  the  danger. 
The  trench  was  dug  by  the  employes  of  Kendall  &  Co.,  plumbers, 
engaged  in  plumbing,  digging  trenches,  and  repairing  water  pipes. 
A  service  water  pipe  in  the  street  bursted,  and,  in  order  to  repair  it, 
the  employes  of  Kendall  &  Co.  made  the  excavation.  One  of  these 
employes  was  examined  as  a  witness  in  behalf  of  the  plaintiff.  The 
following  is  part  of  his  testimony :     "I  don't  know  the  exact  date  of 

7  Part  of  the  opinion  is  omitted. 


CARE    OF   STREETS  287 

this  accident.  I  remember  of  the  accident,  and  it  was  on  the  day  of 
that  accident  that  I  commenced  work,  not  on  the  dav  before.  I  com- 
menced at  one  o'clock  in  the  afternoon.  I  dug  up  the  paving,  and 
was  digging  the  ditch  to  repair  a  leak  in  the  service  water  pipe  that 
ran  around  across  the  street  to  William  Kreim's  property.  *  *  * 
After  I  had  got  done  with  it,  I  hung  out  a  lantern  that  evening. 
*  *  *  I  was  not  right  there  at  the  time  of  the  accident.  I  had  just 
stepped  across  the  sidewalk,  into  Janssen  &  Struve's  yard.  *  *  * 
It  was  about  25  or  30  feet  from  where  this  ditch  was  where  I  stepj^cd 
into  the  yard.  *  *  *  I  ^-as  gone  not  over  three  minutes.  I  went 
right  back  to  the  ditch,  and,  when  I  got  back  to  the  ditch,  the  acci- 
dent had  happened.  Before  I  went  into  the  yard,  I  did  not  see  any 
person  or  vehicle  passing,  or  any  teams  standing  about  there,  except 
a  load  of  hay  in  front  of  Mailman's  grocery.  *  *  *  "  There  was 
no  evidence  which  can  be  said  to  be  in  conflict  with  the  testimony  of 
this  witness,  except  that  one  or  more  witnesses  testified  that  they 
thought  the  work  was  continued  in  the  street  for  two  days.  But 
we  think  the  jury  should  have  found  that  there  was  no  real  danger 
after  the  earth  was  put  back  in  the  trench  on  the  evening  of  the  ac- 
cident. The  signal  light  was,  doubtless,  placed  in  the  street  because 
the  brick  paving  had  not  been  replaced. 

It  appears  that  the  plumbers  made  the  excavation  without  any  per- 
mit from  the  city  authorities ;  and  the  proper  officers  of  the  city  had 
no  actual  knowledge  of  the  excavation.  A  motion  was  made  at  the 
close  of  the  introduction  of  plaintiff's  evidence  that  the  court  direct 
the  jury  to  return  a  verdict  for  the  defendant.  The  motion  was  over- 
ruled. We  think  it  should  have  been  sustained.  There  l)eing  no  ac- 
tual notice  to  the  city,  and  there  being  no  such  lapse  of  time  as  that 
the  city  could  properly  be  charged  with  constructive  notice,  there 
was  no  right  of  recovery.  It  will  be  understood  that  such  excava- 
tions in  streets  arc  at  times  necessary.  If  the  work  is  done  in  a 
proper  manner,  and  signal  lights  are  put  in  proper  position,  or  guards 
or  barriers  are  erected  when  the  work  is  left  by  the  laborers  at 
night,  no  one  is  chargeable  with  negligence.  While  the  workmen  arc 
present,  and  engaged  in  the  work  during  the  day,  no  such  protec- 
tion is  necessary.  It  would  be  carrying  the  doctrine  of  constructive 
notice  to  an  unwarranted  extent  to  hold  that  a  jury  might  find  the 
city  negligent  because,  before  the  close  of  the  (lay,  the  laborer  ab- 
sented hiinsclf  from  the  work  for  a  few  minutes,  for  a  necessary  pur- 
pose.    *     *     *     Reversed. 


2S8  TORTS 


III.  Obstructions  ' 


THUNBORG  v.  CITY  OF  PUEBLO. 
(Court  of  Appeals  of  Colorado,  1902.    IS  Colo.  App.  80,  70  Pac.  148.) 

Action  by  C.  A.  Thunborg  against  the  city  of  Pueblo.  Judgment 
for  defendant,  and  plaintiff  brings  error. 

Thomson,  J.  C.  A.  Thunborg  brought  this  action  against  the 
city  of  Pueblo  to  recover  damages  for  injuries  sustained  by  him  on 
June  24,  1898,  by  coming  into  collision  with  a  hydrant  or  fire  plug 
hidden  by  weeds  and  sagebrush,  while  driving  along  Court  street,  a 
public  street  of  the  city,  in  the  evening.  The  complaint  charged  neg- 
ligence against  the  city  in  suffering  a  growth  of  weeds  and  brush  to 
conceal  the  fire  plug,  and  alleged  want  of  knowledge  in  the  plaintiff 
of  its  existence.  The  answer  denied  negligence  on  the  part  of  the 
city,  and  alleged  that  the  street  was  but  little  used,  and  that  the 
plaintiff  was  guilty  of  contributory  negligence  in  driving  at  a  furious 
and  unlawful  rate  of  speed.  The  defendant  had  judgment,  and  the 
plaintiff  appealed. 

The  following  facts  appeared  from  the  evidence:  The  street  was 
a  public  and  much-used  thoroughfare.  The  fire  plug  was  but  a  few 
inches  from  the  beaten  roadway,  which  deviated  towards  it  to  avoid 
a  puddle  of  mud,  and  was  concealed  by  a  thick  growth  of  weeds  and 
sagebrush.  The  same  conditions  had  existed  there  for  at  least  three 
years  previous  to  the  accident,  the  weeds  being  renewed  every  spring, 
and  the  sagebrush  remaining  constantly.  The  injuries  received  by 
the  plaintiff  were  severe  and  permanent.  It  was  dark,  or  nearly 
dark,  when  the  accident  occurred.  The  plaintiff  testified  that  on  the 
evening  of  the  accident  he  was  returning  to  his  home  in  a  cart ;  that 
wdien  nearly  opposite  the  fire  plug,  which  he  had  never  seen,  and  the 
existence  of  which  he  did  not  suspect,  he  saw  another  vehicle  ap- 
proaching him  in  the  roadway,  which  he  could  not  pass  except  by 
entering  the  weeds  and  brush ;  that,  to  avoid  a  collision,  he  turned 
to  the  right  into  the  weeds  and  brush,  struck  the  fire  plug,  and  was 
thrown  to  the  ground ;  and  that  when  approaching  the  place  where 
the  fire  plug  was  located  his  horse  was  going  at  an  ordinary  trot. 
It  was  testified  that  in  the  previous  summer  another  person,  meeting 
a  team  in  the  same  locality,  turned  into  the  weeds  and  brush  to  avoid 
it,  struck  the  fire  plug,  and  broke  his  buggy ;  and  that  at  still  another 
time,  at  the  same  place,  there  was  a  narrow  escape  from  the  same 
kind  of  accident.  Mr.  E.  Settles,  the  man  in  the  buggy  which  the 
plaintiff  turned  out  of  the  road  to  avoid,  stated  that  he  heard  the 

8  For  discussion  of  principles,  see  Cooley,  Mim.  Corp.  §  119. 


OBSTRUCTIONS  2S0 

rattle  of  the  plaintiff's  cart;  that  it  seemed  to  him,  from  the  great 
noise  the  cart  was  making,  that  some  one  was  driving  very  fast,  or 
that  the  horse  was  running  away ;  that  it  was  nearly  dark,  and  he 
could  not  see  whether  the  horse  was  trotting  or  loping;  that,  when 
almost  opposite  to  him,  the  plaintiff  left  the  road  and  struck  the 
fire  plug ;  and  that  he  went  to  the  plaintiff,  and  asked  him  why  he 
was  driving  so  fast,  and  the  plaintiff  answered  that  he  was  driving  a 
new  horse,  and  could  not  hold  him.  Witness  also  stated  that  the 
plaintiff  was  very  much  stunned  by  the  fall.  Two  members  of  the 
police  force  of  the  city,  who  took  the  plaintiff  to  the  hospital,  said  he 
told  them  that  his  horse  was  running  away  at  the  time  of  the  acci- 
dent. They  also  said  he  was  suffering  frightful  pain.  In  rebuttal  it 
was  shown  that,  owing  to  the  play  of  the  spokes  in  the  hubs,  the 
plaintiff's  cart,  which  was  very  old,  was  extremely  noisy. 

The  fire  plug  was  lawful  and  necessary  in  the  place  it  occupied, 
yet,  by  reason  of  its  being  concealed  from  view,  it  became  a  menace 
to  the  safety  of  travelers.  It  appears  that  it  was  very  close  to  the 
edge  of  the  beaten  roadway,  and  that  a  vehicle  passing  at  that  point 
could  be  avoided  only  by  turning  towards  it ;  and  this  one  having  no 
reason  to  suspect  that  he  would  encounter  anything  more  dangerous 
than  weeds  or  sagebrush  would  not  hesitate  to  do.  The  jjlaintiff.  be- 
ing lawfully  on  the  street,  for  the  purpose,  as  he  sui)posetl,  of  pre- 
venting a  collision,  turned  his  horse  into  the  harmless  appearing 
growth  of  vegetation,  with  the  result  that  he  suffered  permanent 
injury.  That  the  city  had  actual  or  implied  knowledge  of  the  exist- 
ence of  the  conditions  which  rendered  its  fire  plug  dangerous  to 
travelers  is  not  disputed,  and  we  think  its  negligence  was  established 
beyond  question.  If,  however,  as  to  the  question  of  the  city's  neg- 
ligence, it  could  be  said  that  the  evidence  left  room  for  a  difference 
of  opinion,  the  court's  third  instruction,  which  was  given  by  consent, 
contained  a  fair  statement  of  the  law;  and,  in  so  far  as  other  in- 
structions were  inconsistent  with  it.  they  were  erroneous.  lUu  while, 
respecting  the  duty  and  responsibility  of  the  city  in  relation  to  the 
cause  of  the  accident,  the  court  correctly  declared  tin-  law,  on  the 
question  of  contributory  negligence  it  committed  fatal  error.  In  sub- 
mitting that  question  to  the  jury  the  following  language  was  used: 
"The  jurv  are  further  instructed  that  if  they  find,  from  the  evidence 
that  the  'i)laintiff  was  traveling  at  a  furious  and  rapid  rate  of  s|)cc(l. 
an<l  that  such  act  on  his  part  was  the  cause  of  the  injury,  and  that  he 
would  not  have  suffered  the  same  had  he  been  driving  at  an  orclinary 
and  prudent  rate  of  speed,  then  it  is  immaterial,  so  far  as  this  de- 
fense is  concerned,  whether  his  so  traveling  was  intcnlioiud  ..n  his 
I)art,  or  the  result  of  his  inability  to  restrain  his  horse." 

Negligence  is  want  of  care.  It  consists  in  omitting  to  do  sotne- 
thing  which  should  be  done,  or  inconsiderately  doing  .something  in 
an  improper  manner.     The  term  supposes  the  ability  to  do  the  thnig 

COOLEY  Ca.se.s  MtTN.C. — 10 


200  TORTS 

omitted  or  to  do  the  thing  undertaken  properly.  It  cannot  be  ap- 
pHcd  to  an  act  or  omission  which  is  compulsory.  There  was  no 
proof  of  rapid  or  furious  driving  by  the  plaintiff.  The  only  evidence 
warranting  a  supposition  that  the  horse  was  exceeding  his  ordinary 
speed  is  found  in  statements  of  the  plaintiff  made  when  stunned  by 
the  fall ;  and,  according  to  the  same  evidence,  the  horse  was,  at  the 
time,  beyond  control.  If  the  horse  was  going  excessively  fast,  it  is 
quite  material  whether  the  plaintiff  was  able  to  restrain  him  or  not; 
for,  unless  the  plaintiff  was  himself  responsible  for  the  immoderate 
speed,  it  constitutes  no  defense  to  the  city.  City  of  Denver  v.  John- 
son, 8  Colo.  App.  384,  46  Pac.  621 ;  City  of  Crawfordsville  v.  Smith, 
79  Ind.  308,  41  Am.  Rep.  612 ;  Ring  v.  City  of  Cohoes,  77  N.  Y.  83, 
33  Am.  Rep.  574;  Baldwin  v.  Turnpike  Co.,  40  Conn.  238,  16  Am. 
Rep.  33. 
Let  the  judgment  be  reversed.     Reversed. 


IV.  Sidev^ralks* 


BLYHL  V.  VILLAGE  OF  WATERVILLE. 

(Supreme  Court  of  Minnesota,  1894.     57  Minn.  115,  58  N.  W.  817,  47  Am.  St. 

Rep.    596.) 

Action  by  Alexander  Blyhl  against  the  village  of  Waterville  to  re- 
cover for  personal  injuries.  Judgment  for  the  plaintiff.  Defendant 
appeals. 

GiivFiivLAN,  C.  J.  The  defendant,  a  municipal  corporation,  re- 
quired an  owner  of  a  lot  abutting  on  one  of  its  streets  to  construct  a 
plank  walk  along  the  street  by  the  side  of  his  lot,  and  he  constructed 
it  on  a  grade  given  him  by,  and  under  the  direction  and  with  the  ap- 
proval of,  defendant's  street  commissioner.  As  constructed,  the  walk 
made,  at  the  junction  of  this  new  walk  with  the  walk  along  the  re- 
mainder of  the  block,  a  drop  or  step  seven  or  eight  inches  in  height.  It 
is  apparent  there  was  no  necessity  or  reason  for  having  the  drop 
instead  of  gradually  sloping  the  grade  of  the  new  walk  until  it  came 
to  the  grade  of  the  remainder.  It  is  also  apparent  that  so  sloping  it 
would  have  made  a  safe  walk,  and  that  the  drop  made  it  dangerous  to 
one  passing  along  it  in  the  dark.  After  the  walk  had  been  in  that 
condition  for  about  a  month,  plaintiff,  passing  along  it  in  the  dark,  hit 
his  foot  against  the  face  of  the  drop,  and  fell,  and  was  injured,  and 
brings  this  action  to  recover  for  the  injury.  From  a  judgment  after 
verdict  in  his  favor  the  defendant  appeals. 

0  For  discussion  of  principles,  see  Cooley,  Mun  Corp.  §  120. 


SIDEWALKS  291 

Unless  the  defendant  is  exempt  from  liability  on  the  ground  claimed 
by  it  as  hereinafter  stated,  the  existence  of  the  drop  in  the  sidewalk 
to  the  knowledge  of  defendant,  through  its  street  commissioner,  was 
sufficient  to  make  defendant's  negligence  a  question  for  the  jurv.  Ta- 
bor V.  Cit)'  of  St.  Paul,  36  Minn.  188,  30  N.  W.  765.  The  defendant 
claims  it  cannot  be  held,  because  the  defect  in  the  walk  was  in  the  plan 
on  which  it  was  constructed ;  that  the  adoption  by  a  municipal  corpo- 
ration of  a  plan  for  a  public  improvement  is  a  legislative  or  discre- 
tionary function,  and  that  the  corporation  is  not  liable  for  the  conse- 
quences of  any  error  in  the  discharge  of  such  functions.  That  a  mu- 
nicipal corporation  is  not  liable  for  consequential  injuries  arising  from 
the  bona  fide  exercise  of,  or  omission  to  exercise,  those  powers  which 
are  conferred  on  its  council  or  legislative  body,  and  the  exercise  of 
which  as  to  the  time,  extent,  and  manner  is  left  to  the  discretion  or 
judgment  of  such  body,  has  been  fully  recognized  by  this  court.  Lee 
V.  City  of  Minneapolis,  22  Minn.  13;  Alden  v.  Same,  24  Minn.  254. 
Most  municipal  public  improvements  come  within  such  powers.  Thus, 
unless  controlled  by  charter  provisions,  when  street  grades  shall  be 
established,  and  on  what  planes  or  levels ;  when  grades  shall  be 
changed,  and  to  what  planes;  when  streets  shall  be  paved,  and  with 
what  kind  of  pavement;  when  sidewalks  and  crosswalks  shall  be  laid, 
and  of  what  material ;  what  sewers,  gutters,  and  catch  basins  shall 
be  made,  and  when  and  how, — are  usually  left  to  the  judgment  or  dis- 
cretion of  the  legislative  body  of  the  corporation.  And  while,  of 
course,  it  is  expected  the  best  results  to  the  people  of  the  corporation 
will  follow  the  efforts  of  that  body,  it  is  not  enjoined  as  a  duty  to  pro- 
duce any  particular  result,  so  that  failure  to  bring  it  about  will  make 
the  corporation  liable  for  consequential  injuries. 

The  matter  of  keeping  streets  and  sidewalks  in  safe  condition  stan<ls 
on  a  flifferent  footing.  It  has  always  been  held  in  this  state  that  a 
municipal  corporation  having  exclusive  control  of  its  streets,  when  the 
means  are  within  its  power,  has  imjiosed  on  it  a  positive  duty  to  keep 
such  streets  in  reasonably  safe  condition.  Scores  of  recoveries  for  in- 
juries resulting  from  neglect  of  that  duty  have  been  sustained  in  thi*^ 
court.  The  first  formal  statement  of  the  rule  was  in  Shartlc  v.  City  of 
Minneapolis,  17  Minn.  30X  (C^il.  2S4).  in  tliese  words:  "It  is  well  settled 
that  a  nnmicii)al  corporation  having  the  exclusive  control  of  the  streets 
and  bridges  within  its  limits,  at  least  if  the  means  for  i)erforming  the 
duty  are  provided  or  placed  at  its  di.sposal,  is  obliged  to  keep  them  in 
a  safe  condition;  and  if  it  unreasonably  neglects  this  duty,  and  injury 
results  to  any  per.son  by  this  neglect,  the  corporation  is  liable  for  the 
damages  sustained."  In  this  particular  there  is  not  only  a  power  "n 
ferred,  but  there  is  al.so  a  duty  impose<l.  to  use  the  pf)wcr  with  a  ' 
to  a  particular  result,  to  wit.  the  safe  coiulition  of  the  streets, 
this  duty  Dill.  Mun.  Corp.  Mlh  Kd.)  §  1023a,  says:  "Which  dtjty  is 
not  legislative  or  judicial,  but  rather,  in  its  nature,  ministerial."     It  i- 


292  TORTS 

therefore  not  left  to  the  corporation's  legislative  body  to  determine 
when  or  to  what  extent  the  duty  shall  be  performed,  nor  to  determine 
it  has  been  performed ;  for,  if  it  were,  it  would  be  a  discretionary,  not 
a  positive,  duty.  That  the  safe  condition  of  streets  concerns  the  safety 
of  life  and  limb,  and  not  only  convenience  or  property,  is  a  reason 
for  imposing  a  duty  in  respect  to  it  greater  than  is  imposed  with 
respect  to  other  matters  of  public  improvement. 

No  question  is  made,  nor  can  there  be,  on  the  decisions  that,  if  a 
dangerous  defect  is  due  to  wear,  decay,  accident,  or  the  act  of  a  third 
person,  the  corporation,  upon  notice  of  it,  must  seasonably  repair  it. 
In  this  case,  if  the  property  owner  had,  without  authority,  constructed 
the  sidewalk  with  the  dangerous  defect,  it  would  have  been  the  duty 
of  the  corporation  to  seasonably  remedy  it.  The  corporation  might 
adopt  or  ratify  the  plan  on  which  the  owner  constructed  the  walk ; 
but  to  hold  that  by  so  adopting  or  ratifying  it  it  could  avoid  the 
duty  to  remedy  the  defect  would  enable  it  to  determine  whether  it 
would  perform  the  duty  imposed  on  it  or  not,  and  it  would  cease 
to  be  a  duty.  And  if  the  corporation  is  not  liable  in  case  of  a  dan- 
gerous defect  in  a  street  or  sidewalk,  because  the  defect  is  in  the 
plan  previously  adopted  for  its  construction,  then,  although  it  is  its 
duty  to  keep  the  streets  in  safe  condition  as  against  natural  causes 
or  Ihe  acts  of  third  persons,  it  is  not  its  duty  to  keep  them  in  such 
condition  as  against  its  own  acts.  And  whether  it  is  its  duty  or  not 
will  depend  on  whether  it  is  responsible  for  the  unsafe  condition; 
and  if  it  may,  without  liability,  determine  in  advance,  in  adopting  a 
plan  for  coi^struction,  that  a  certain  condition  of  the  street  or  walk 
will  be  safe  enough,  we  do  not  see  upon  what  principle  it  is  to  be 
liable  if,  after  the  condition  exists,  from  whatever  cause,  it  deter- 
mines the  street  or  walk  to  be  safe  enough,  and  to  need  no  repair. 

We  have  not  used  the  term  "positive  duty"  in  the  sense  that  the 
corporation  insures  the  safe  condition  of  its  streets,  or  that  it  is 
bound  to  maintain  them  in  that  condition  without  reference  to  the 
difficulties  in  the  way  of  doing  so.  There  may  be  defects  that  are 
practically  irremediable.  The  topography  of  the  ground  may  be 
such  as  to  render  it  practically  impossible  to  have  the  streets  en- 
tirely safe.  In  that  case  the  people  must  accept  such  as  with  rea- 
sonable efforts  can  be  provided.  The  law  does  not  require  of  the 
corporation  unreasonable  things,  but  only  that  it  shall  employ,  in 
performing  its  duty  as  to  streets,  the  diligence,  care,  and  skill  that 
an  ordinarily  prudent  person  having  a  similar  duty  to  perform  would 
employ.  If  it  do  so,  there  is  no  unreasonable  neglect.  So  far  as 
concerns  the  safe  condition  of  a  street  or  sidewalk,  the  same  re- 
quirement applies  to  adopting  a  plan  either  for  its  construction  or 
repair.  Of  course  the  corporation  would  not  be  liable  merely  because, 
in  the  opinion  of  a  jury,  a  safer  or  better  plan  might  have  been  adopted. 
To  illustrate,  we  may  suppose  a  not  uncommon  case,  where,  owing 
to  the  character  of  the  surface,  a  sidewalk  must  be  constructed  on 


SIDEWALKS  293 

one  of  two  plans,  each  leaving  it  more  or  less  unsafe,— one  requiring 
a  slope  so  steep  as  to  be  unsafe;  the  other,  steps  that  will  make  i*t 
unsafe.  The  corporation  would  not  be  liable  for  the  dangers  in  the 
plan  adopted  merely  because,  in  the  opinion  of  a  jury,  the  other 
v.ould  have  been  safer.  To  make  the  corporation  liable,  the  plan 
adopted  would  have  to  be  so  much  and  so  obviously  more  unsafe 
than  the  other  as  to  show  a  neglect  to  employ  the  diligence,  judg- 
ment, and  skill  in  determining  the  plan  which  ordinary  care  would 
require. 

We  are  cited  to  some  decisions  in  Michigan,  New  York,  and  Penn- 
sylvania to  the  effect  that  a  corporation  is  not  liable  for  the  conse- 
quences of  a  dangerous  defect  in  a  street  or  walk  due  to  the  plan 
adopted  for  its  construction,  because  it  is  only  an  error  of  judgment 
in  a  matter  resting  wholly  in  the  judgment  or  discretion  of  the  cor- 
poration. Those  decisions  are  irreconcilable  in  principle  with  other 
decisions  of  the  same  courts,  and  inconsistent  with  the  proposition 
that  keeping  streets  in  reasonably  safe  condition  is  a  matter  of  posi- 
tive duty,  and  not  of  discretion.  We  are  therefore  of  opinion  that 
the  mere  fact  that  an  unsafe  condition  of  a  street  is  due  to  a  defect 
in  the  plan  for  its  construction  will  not  shield  the  corporation  from 
liability  for  injuries  caused  by  such  unsafe  condition. 

There  is  no  merit  in  any  of  the  other  points  made  by  appellant. 
Judgment   affirmed.^" 


JACKSON  V.  CITY  OF  GREENVILLE. 

(Supreme  Court  of  Mis.sissippi,  1894.     72  Miss.  220,  Hi  South.  382,  27  L.  It.  A. 

527,   48   Aiu.    St.    Rep.    553.) 

See  ante,  p.  28^,  for  a  report  of  the  case. 


CITY  OF  WABASHA  v.  SDUTIIWOKTII. 
(Supreme  Court  of  .Minnesota,  ISij.'J.    54  Mlun.  71>.  55  N.  W.  .SIS.) 

Action  by  the  city  of  Wabasha  against  Asahcl  I).  Southworih  to 
recover  the  amount  plaintiff  was  re(|uircd  to  pay  one  Scliinzel  for 
injuries  sustained  by  a  defective  sidewalk  along  defendant's  prem- 
ises.     Plaintiff  had   judgment,  and   defendant  appeals. 

MiTciiKij,,  J.  If  the  findings  of  fact  were  justified  by  the  evi- 
dence, there  is  nothing  new  or  doubtful  in  the  law  govcr?iii)g  this 
case.  In  order  to  entitle  the  plaintiff  to  recourse  on  the  defendant 
for  the  money  which  it  had  paid  in  settlement  of  the  claim  of  Schinzcl 
for  injuries  sustained  by  reason  of  the  defective  sidewalk,  it  was 
necessary    to  establish — First,    that    the   city   was   liable   to    Schinzcl 

10  The  opinion  of  Canty,  J.,  is  onilttrd. 


294  TORTS 

by  reason  of  negligence  in  the  performance  of  its  duty  to  the  public 
to  keep  its  streets  in  safe  condition ;  and,  second,  that  defendant 
was  also  liable  to  Schinzel  by  reason  of  his  negligence  in  construct- 
ing or  maintaining  the  nuisance  in  the  street  which  caused  the  injury. 
If  these  two  facts  were  established,  then  the  right  of  the  city  to 
recourse  against  the  defendant  is  not,  and  could  not  successfully  be, 
denied. 

There  is  nothing  in  the  point  that  the  mode  of  procedure  prescribed 
by  the  city  charter  (Sp.  Laws  1889,  c.  13,  subc.  7,  §  16)  is  exclusive, 
and  that  the  city's  only  remedy  was  to  let  the  claim  of  Schinzel  go 
to  judgment  against  both  it  and  Southworth,  pay  the  judgment,  and 
then  enforce  it  against  Southworth.  This,  like  similar  provisions  in 
other  charters,  is  designed  to  aid  and  not  to  hinder  cities  in  dealing 
with  such  claims,  so  that  the  liability  of  a  third  party  may  be  deter- 
mined and  enforced  in  the  same  action  in  which  that  of  the  city  is 
determined  and  enforced.  The  only  effect  of  the  city's  settling  the 
claim  without  such  judgment  was  that  the  questions  upon  which 
the  liability  of  Southworth  depends  were  left  open.  See  Jones  v. 
City  of  Minneapolis,  31  Minn.  230,  17  N.  W.  Z77  \  Clark  v.  City 
of  Austin,  38  Minn.  487,  38  N.  W.  615;  Mill  Co.  v.  Wheeler,  31  Minn. 
121,  16  N.  W.  698. 

The  court  found  that  the  city  might,  by  the  exercise  of  ordinary 
care,  have  known  of  the  unsafe  condition  of  this  sidewalk  in  time 
to  repair  it  before  the  accident  occurred.  This  finding,  which  is  not 
assailed,  settles  the  question  of  the  city's  liability  to  Schinzel. 

Passing  over  the  finding  to  the  effect  that  this  hatchway  in  the 
sidewalk  was  originally  constructed  in  a  negligent  and  unsafe  man- 
ner, (which  we  think  was  justified  by  the  evidence,)  the  court  further 
found  that  the  defendant  knew,  or  by  the  exercise  of  ordinary  care 
might  have  known,  of  the  existence  and  character  of  this  hatchway 
and  covering  at  the  time  he  purchased  the  property ;  also,  that  for 
more  than  a  year  prior  to  the  accident  he  had  negligently  suft'ered  and 
permitted  this  covering  or  trapdoor  over  the  hatchway  to  become  de- 
cayed and  unsecurely  fastened  and  supported,  whereby  the  sidewalk 
over  the  excavation  underneath  became  and  was  unsafe  for  ordinary 
travel.  That  the  first  part  of  this  finding  was  supported  by  the  evi- 
dence is  beyond  question.  Indeed,  we  think  the  evidence  was  such 
as  to  require  a  finding  that  defendant  had  actual  knowledge  of  the 
existence  and  character  of  this  hatchway  as  long  ago  as  the  date  of 
his  purchase  of  the  undivided  half  of  the  abutting  property  in  1873. 
Nor  in  our  opinion  is  there  any  more  room  for  doubt  as  to  the  suf- 
ficiency of  the  evidence  to  justify  the  latter  part  of  the  finding.  The 
defendant  maintained  this  hatchway  in  the  street  by  allowing  it  to 
remain  there,  with  knowledge  of  its  existence.  The  fact  that  he  had 
not  used  it  for  some  years  is  immaterial,  and  the  claim  that  he  had 
relieved  himself  from  responsibility  by  abandoning  it  is  without  merit. 
Having  been  constructed  in  the  street  for  the  convenience  of  his  abut- 


SIDEWALKS  295 

ting  property  the  only  way  he  could  relieve  himself  from  the  dutv  of 
keeping  it  in  repair  was  to  restore  the  street  to  its  original  condition 
by  filling  up  the  excavation  and  replacing  the  stringers  under  the  side- 
walk. Nichols  V.  City  of  Minneapolis,  33  Minn.  430,  23  N.  W.  868, 
53  Am.  Rep.  56. 

The  negligence  of  the  defendant  in  the  maintenance  of  this  hatch- 
way or  cellar  way  we  place  upon  his  lack  of  ordinary  care  in  not 
taking  reasonable  precautions  to  keep  it  in  safe  condition,  and  not  upon 
the  ground  that  all  excavations,  basement  or  cellar  ways,  scuttles,  and 
the  like,  made  or  constructed  in  the  street  without  affirmative  munic- 
ipal license,  are  per  se  unlawful,  and  nuisances.  Numerous  reported 
cases,  both  in  this  country  and  England,  show  that  it  has  been  as- 
sumed, time  out  of  mind,  in  accordance  with  a  custom  of  long  stand- 
ing, that,  even  in  the  absence  of  any  express  license,  this  is  a  legiti- 
mate use  of  the  street  for  the  convenience  of  abutting  property,  pro- 
vided it  be  exercised  in  a  proper  and  safe  manner,  and  consequently 
that  the  property  owner  is  not  an  absolute  insurer  against  all  injuries 
resulting  from  the  existence  of  such  things  in  the  street,  but  is  only 
responsible  for  negligence  or  want  of  reasonable  care  in  their  con- 
struction or  maintenance.  This  we  deem  the  correct  view  of  the  law 
on  this  subject.     See  Fisher  v.  Thirkell,  21  Mich.  1,  4  Am.  Rep.  422. 

But  such  structures  having  been  placed  in  the  street  for  the  con- 
venience of  the  abutting  property,  it  stands  to  reason  that,  as  between 
the  property  owner  and  the  city,  the  duty  of  maintaining  them  in  a 
safe  condition  devolves  on  the  former.  Defendant  was  bound,  in  the 
exercise  of  ordinary  care,  to  take  notice  of  the  fact  that  wood  will 
decay.  Landru  v.  Lund,  38  Minn.  538,  38  N.  W.  699.  The  fact  that 
the  planks  forming  the  cover  of  this  hatchway  showed  no  signs  of 
decay  on  the  upper  side  did  not  justify  the  defendant  in  assuming. 
without  inspection,  that  they  and  the  stringers  on  which  they  rested 
had  not,  in  the  18  years  or  more  that  they  had  been  there,  become 
rotten  underneath,  where  they  were  excluded  from  the  sun  and  sub- 
jected to  constant  moisture.  Leaving  these  planks,  which  were  a  part 
of  a  public  sidewalk,  over  an  excavation  live  or  six  feet  deep,  with 
the  middle  stringers  of  the  sidewalk  cut  away,  the  only  suj)port  of 
the  planks  being  at  the  two  ends,  the  .sup|)ort  at  the  inner  enti  next 
the  building  being  only  about  an  inch  in  width  of  a  perishable  wooden 
stringer,  and  failing  to  inspect  them  for  all  these  years,  to  ascertain 
their  condition,  constituted  a  state  of  facts  that  abundantly  justiticd 
the  court  in  fmding  that  defendant  was  guilty  of  negligence.  The 
defenflant,  however,  sought  to  escajjc  liability  by  attempting  to  show 
that  he  had  rented  the  i)remises  to  certain  tenants,  and  that  they,  an<l 
not  he,  were  res|)onsible  for  the  maiiUenancc  of  this  hatchway  and 
cover;  ancl  the  refusal  of  the  court  to  make  a  linding  as  to  the  ikjs- 
session  and  occupancy  of  the  premises  by  these  tenants  before  and 
at  the  time  of  the  accident  is  assigned  as  error.  Without  con.sidcring 
the  points  that  the  pleadings  raised  no  such  issue,  and  that  according 


296  TORTS 

to  the  findings  of  the  court  this  cover  to  the  hatchway  was  already 
in  an  unsafe  condition  before  the  date  of  the  lease  to  the  tenants,  it 
is  enough  to  say  that  there  was  not  a  particle  of-  evidence  that  the 
lease  included  the  cellar  or  the  hatchway. 

There  is  no  merit  in  defendant's  seventh  assignment  of  error.  Of 
course,  the  city  was  not  liable  to  Schinzel  for  his  attorneys'  fees  as 
such,  but  the  $150  in  this  case  was  paid  to  his  attorneys  as  part  of 
the  amount  which  the  city  had  agreed  with  him  to  pay  in  settlement 
of  his  claim  against  it  for  damages.  In  legal  effect,  it  was  paid  to 
Schinzel,  and  as  long  as  it  was  paid  for  his  benefit,  and  in  settlement 
of  his  claim  against  the  city,  it  was  wholly  immaterial  to  whom  the 
money  was  actually  paid  over ;  the  aggregate  amount  paid  out  in  all 
being  within  the  amount  for  which  the  city  and  the  defendant  were 
liable  to  him. 

As  we  do  not  discover  any  error  in  the  record,  the  judgment  ap- 
pealed from  must  be  affirmed. 


V.  Drains  and  Sewers  *^ 


TATE  v.  CITY  OF  ST.  PAUL. 

(Supreme  Court  of  Minnesota,  1894.    56  Minn.  527,  58  N.  W.  158,  45  Am.  St. 

Rep.   501.) 

Action  by  William  E.  Tate  against  the  city  of  St,  Paul.  Judgment 
was  ordered  for  plaintiff,  and  defendant  appeals. 

Giiyi?ii.iyAN,  C.  J.  The  action  is  to  recover  damages  arising  from 
a  sewer  laid  by  defendant,  and  with  which  plaintiff  had  connected, 
as  he  had  a  right  to  do,  setting  the  water  in  it  back  so  that  it  flooded 
plaintiff's  basements.  The  defect  alleged  in  the  sewer  was  that  it  was 
of  insufficient  capacity  to  carry  off  the  water  brought  into  it.  The 
defect  appears  to  have  existed  in  the  original  plan  for  sewering  that 
part  of  the  city ;  that  is,  the  city,  in  determining  upon  a  system  of 
sewers,  determined  upon  the  sizes  required  for  the  main  sewer  and 
for  the  lateral  sewers  running  into  it,  and  the  size  determined  on  for 
the  former  proved  too  small. 

The  rule  is  uniformly  conceded  that  for  injuries  wholly  incidental 
to  and  consequential  upon  the  exercise  by  a  municipal  corporation  of 
the  legislative  or  discretionary  powers  intrusted  to  it  (as  distinguished 
from  its  ministerial  acts)  no  action  will  lie  against  it.  Instances  of 
the  application  of  that  rule  are  furnished  by  Lee  v.  City  of  Minne- 
apolis, 22  Minn.  13,  where  the  power  exercised  was  establishing  the 
grade  of  a  street  under  the  charter,  and  Alden  v.  City  of  Minneapolis, 

11  For  discussion  of  principles,  see  Cooley,  Mun.  Corp,  §  122. 


DEAINS    AND   SEWERS  297 

24  Minn.  254,  where  the  city  had  established  a  system  of  grades  for 
streets  and  sidewalks  and  drains,  gutters,  catch-basins,  and  sewers,  and 
had  constructed  the  streets,  sidewalks,  drains,  and  gutters,  and  par- 
tially completed  the  sewers.  The  complaint  was  that  the  sewers,  drains, 
gutters,  and  catch-basins  were  not  sufficient  to  carry  off  the  surface 
water  falling  in  rains  upon  the  streets,  so  that  it  flowed  from  the 
streets  upon  plaintiff's  lot.  The  line  between  legislative  acts  and  min- 
isterial acts  of  a  municipal  corporation  is  not  very  clearly  marked  by 
the  decisions,  nor  is  it  necessary  to  attempt  to  trace  it  in  this  case. 
Some  of  the  earlier  cases  do  not  clearly  recognize  the  distinction  be- 
tween injuries  incidental  to  the  exercise  of  municipal  legislative  func- 
tions, and  direct  and  positive  wrongs — such,  for  instance,  as  trespass 
— caused  by  it.  The  later  and  better  authorities,  however,  recognize 
the  distinction,  and,  while  adhering  to  the  rule  that  for  the  former  no 
action  will  lie,  hold  that  for  the  latter  the  party  may  recover.  The 
distinction  is  apparent,  though  it  is  not  clearly  discussed  in  either 
of  the  cases,  of  O'Brien  v.  City  of  St.  Paul,  18  Minn.  176  (Gil.  163,) 
and  25  Minn.  331,  33  Am.  Rep.  470,  Kobs  v.  City  of  Minneapolis,  22 
Minn.  159,  and  the  Lee  and  Alden  Cases,  above  cited. 

To  determine  when  and  upon  what  plan  a  public  improvement  shall 
be  made  is,  unless  the  charter  otherwise  provides,  left  to  the  judg- 
ment of  the  proper  municipal  authorities,  and  is,  in  its  nature,  legis- 
lative. And,  although  the  power  is  vested  in  the  municipality  for 
the  benefit  and  relief  of  property,  error  of  judgment  as  to  when  or 
upon  what  plan  the  improvement  shall  be  made,  resulting  only  in  in- 
cidental injury  to  the  property,  will  not  be  ground  of  action ;  as,  if. 
in  grading  streets  to  the  authorized  grades,  the  plan  of  the  grading  is 
inadequate  to  drain  a  lot  of  the  surface  water,  or  even  if  it  make  it 
more  difficult  and  expensive  for  the  owner  to  drain  it,  or  make  ac- 
cess to  the  lot  niDKc  difficult,  that  is  a  result  incidental  to  the  improve- 
ment. But  for  a  direct  invasion  of  one's  right  of  property,  even  though 
contemplated  by,  or  necessarily  resulting  from,  the  pkui  adoi)te(l,  an 
action  will  lie;  otherwise,  it  would  be  taking  private  property  for 
public  use  without  compensation.  Thus,  if.  in  cutting  a  street  down 
a  grade,  the  soil  of  an  abutting  lot  is  precipitated  intu  the  cut,  or  if, 
in  filling  up  to  grade,  the  slope  of  the  embankment  is  made  to  rest 
on  private  property,  that  is  a  direct  invasion  of  i)roperty  rights  which 
cannot  be  justified,  even  though  the  i)Ian  adopted  contemplates,  or  will 
necessarily  produce,  the  result.  Judge  Dillon,  in  his  work  on  Mu- 
nicipal Corporations,  (4th  Ed.,  §§  1047-1051,)  approves  the  rule,  laid 
down  in  more  recent  decisions  by  some  of  our  ablest  courts,  that  if 
a  sewer,  whatever  its  plan,  is  so  constructed  as  to  cause  a  positive  and 
direct  invasion  of  private  property,  as  by  collecting  and  throwing  upon 
it.  to  its  damage,  water  or  sewage  which  would  not  otherwise  have 
flowed  or  found  its  way  there,  the  corporation  is  liable.  Consjiicuous 
for  their  ability,  among  the  cases  referred  to  by  him,  arc  Ashley  v. 
Port  Huron,  35  Mich.  296,  24  Am.  Rep.  552.  and  Scifcrt  v.  City  of 


298  TORTS 

Brooklyn,  101  N.  Y.  136,  4  N.  E.  321,  54  Am.  Rep.  664,  each,  the 
former  especially,  a  very  interesting  case.  See,  also,  Brayton  v.  Fall 
River,  113  Mass.  218,  18  Am.  Rep.  470;  Lehn  v.  City  and  County 
of  San  Francisco,  66  Cal.  76,  4  Pac.  965 ;  Weis  v.  City  of  Madison, 
75  Ind.  241,  39  Am.  Rep.  135.  It  is  impossible  to  answer  the  reason- 
ing of  these  cases,  especially  where  the  injury  complained  of  consti- 
tutes a  taking.  That  making  one's  premises  a  place  of  deposit  for 
the  surplus  waters  in  the  sewers  in  times  of  high  water,  or  creating  a 
nuisance  upon  them  so  as  to  deprive  the  owner  of  the  beneficial  use 
of  his  property,  is  an  appropriation  requiring  compensation  to  be  made, 
see  Weaver  v.  Boom  Co.,  28  Minn.  534,  11  N.  W.  114. 

The  court  below  instructed  the  jury  "that  where  a  public  work,  for 
instance  a  sewer,  as  the  same  was  originally  planned  and  constructed, 
is  found  to  result  in  direct  and  physical  injury  to  the  property  of  an- 
other, that  would  not  otherwise  have  happened,  and  which,  from  its 
nature,  is  liable  to  be  repeated  and  continuous,  but  is  remediable  by 
a  change  of  plan  or  the  adoption  of  prudent  measures,  the  corporation 
is  liable  for  such  damages  as  occur  in  consequence  of  the  original 
cause,  after  notice  and  an  omission  to  use  ordinary  care  to  remedy 
the  evil."  This  is  within  the  rule  stated  in  Dillon  and  the  cases  cited, 
and,  as  it  gives  the  corporation  an  opportunity  to  correct  or  obviate 
the  error  in  the  original  plan  before  liability,  we  do  not  hesitate  to 
approve  it.  This  is  as  far  as  we  need  go  in  this  case.  The  evidence 
was  such  as  to  justify  a  verdict  for  plaintiff  under  that  charge  of  the 
court.    Order  affirmed. 


DEBTS,  FUNDS,  EXPENSES   AND    ADMINISTRATION  299 


DEBTS,  FUNDS,  EXPENSES  AND  ADMINISTRATION 
I.  Limitation  of  Indebtednei^s  ^ 


CITY  OF  LA  PORTE  v.  GAMEWELL  FIRE-ALARM  TELE- 
GRAPH CO. 

(Supreme  Court  of  Indiana,  1896.     140  Ind.  4(i6.  45  N.  E.  5SS,  35  L.  11.  A.  U>r.. 

58  Am.  St.  Rep.  359.) 

Action  by  the  Gamewell  Fire-Alarm  Telegraph  Company  against 
the  city  of  La  Porte  to  recover  the  contract  price  of  a  tire-alarm 
system  furnished  by  plaintiff  to  defendant.  From  a  judgment  in  favor 
of  plaintiff,  defendant  appeals. 

Monks,  J.2  *  *  *  j^.  appears  from  the  special  fintling  that  on 
August  5,  1890,  appellee  entered  into  a  contract  with  appellant  to 
furnish  and  put  in  complete  working  order  appellee's  system  of  fire 
alarm,  for  the  sum  of  $3,500,  to  be  paid  May  1,  1891.  The  con- 
tract provided  that,  when  said  system  was  completed,  appellant  slunild 
accept  the  same,  and  deliver  to  appellee  a  certificate  to  that  clTcct. 
The  work  was  completed  and  accepted   by   appellant  December    18. 

1890.  At  the  time  of  entering  into  the  contract,  and   until   May   1. 

1891,  appellant  was  indebted,  not  including  appellee's  claim,  over 
$5,000  more  than  2  per  cent,  on  the  assessed  value  of  its  taxable 
property.  At  the  date  of  said  contract.  $2,639.80  was  on  hand  in  the 
city  treasury.  When  the  work  was  completed  and  accepted,  there  was 
on  hand  in  the  general  fund  $359.  On  May  1,  1891,  there  was  $10.- 
328.80  in  the  city  treasury  belonging  to  the  general  fund  collected 
from  the  duplicate  of  1890.  On  June  30,  1890.  the  common  council 
of  appellant,  by  resolution  duly  passed,  ordered  that  a  tax  i>f  $1.05 
on  each  $100  of  valuation  of  taxable  property  be  levie<l. — 74  cents 
for  general  purposes,  and  31  cents  for  the  i)urpose  of  paying  $5,000 
of  the  city  debt  and  the  interest  on  the  city  debt.  The  amount  of 
said  levy  was  $31,285.  No  specific  levy  was  ever  made  for  the  purpose 
of  meeting  any  indebtedness  to  appellee.  Dn  Iin.ie  22,  1S91.  the  com- 
mon council  passecl  a  resolution  declaring  "tli.it  $3,532.68  be  set  asi<lc 
out  of  the  general  fund  for  the  purpose  of  paying  the  order  drawn 
in  favor  of  the  Gamewell  Fire-Alarm  Telegraph  Company,  which 
was  ordered  drawn  May  25,  1891,  by  the  common  council,  an<l  which 
the  mayor  refused  to  sign." 

Appellant  earnestly  insists  that,  by  the  contract  sued  ui)on,  api)cl- 
lant  became  indebted  to  api)ellee,  and  that  the  same  was  void,  un- 

1  For  disnisslon  of  prliiftplcs,  hop  fnolcj.  .Miin.  Corp.  |  I'JiS. 
'■^  I'art  of  the  r>piiiloM  Is  omllted. 


300  DEBTS,  FUNDS,  EXPENSES    AND    ADMINISTRATION 

der  the  provisions  of  article  13  of  the  constitution,  for  the  reason 
that  appellant  was  already  indebted  in  excess  of  the  amount  allowed 
by  said  article.  Article  13  of  the  constitution  adopted  in  1881  is  as 
follows:  "No  political  or  municipal  corporation  in  this  state  shall 
ever  become  indebted  in  any  manner  or  for  any  purpose,  to  an  amount 
in  the  aggregate  exceeding  two  per  centum  of  the  value  of  the  taxa- 
ble property  within  such  corporation,  to  be  ascertained  by  the  last 
assessment  for  the  state  and  county  taxes  previous  to  the  incurring 
of  such  indebtedness ;  and  all  bonds  or  obligations  in  excess  of  such 
amount  given  by  such  corporation  shall  be  void :  provided,  that  in 
time  of  war,  foreign  invasion  or  other  great  public  calamity,  on  pe- 
tition of  a  majority  of  the  property  owners,  in  number  and  value 
within  the  limits  of  such  corporation,  the  public  authorities,  in  their 
discretion,  may  incur  obligations  necessary  for  the  public  protection 
and  defense  to  such  an  amount  as  may  be  required  in  such  petition." 
This  clause  in  our  constitution  is,  in  legal  effect,  the  same  as  that 
of  Iowa,  and  was,  no  doubt,  taken  from  the  constitution  of  that  state. 
It  is  a  familiar  rule  that,  where  a  clause  is  taken  from  the  constitu- 
tion or  statute  of  another  state,  it  will  be  deemed  to  have  the  meaning 
given  it  by  the  courts  of  that  state.  Under  this  provision,  every 
indebtedness  incurred  "in  any  manner,  or  for  any  purpose,"  is  within 
the  prohibition.  City  of  Council  Bluffs  v.  Stewart,  51  Iowa,  385,  1 
N.  W.  628;  Scott  v.  City  of  Davenport,  34  Iowa,  208;  Grant  v. 
City  of  Davenport,  36  Iowa,  396,  401 ;  French  v.  City  of  Burlington, 
42  Iowa,  614;  Anderson  v.  Insurance  Co.,  88  Iowa,  579,  55  N.  W. 
348;  Brown  v.  City  of  Corry,  175  Pa.  528,  34  Atl.  854;  Lake  Co. 
V.  Rollins,  130  U.  S.  662,  9  Sup.  Ct.  651,  32  L.  Ed.  1060;  Doon  Tp. 
v.  Cummins,  142  U.  S.  366,  12  Sup.  Ct.  222,  35  L.  Ed.  1044;  Litch- 
field V.  Ballou,  114  U.  S.  190,  5  Sup.  Ct.  820,  29  L.  Ed.  132;  note  to 
Beard  v.  City  of  Hopkinsville  (Ky.)  23  L.  R.  A.  402-408;  s.  c.  95 
Ky.  239,  24  S.  W.  872;  note  to  same  case,  44  Am.  St.  Rep.  229,  243. 
The  controlling  question  in  this  case  is,  do  the  facts  found  show 
an  indebtedness  of  appellant  within  the  inhibition  imposed  by  the 
foregoing  article  of  the  constitution?  A  debt,  in  its  general  sense, 
is  a  specific  sum  of  money,  which  is  due  or  owing  from  one  person 
to  another,  and  denotes  not  only  an  obligation  of  the  debtor  to  pay, 
but  the  right  of  the  creditor  to  receive  and  enforce  payment.  State 
V.  Hawes,  112  Ind.  323,  14  N.  E.  87;  City  of  Valparaiso  v.  Gard- 
ner, 97  Ind.  1,  49  Am.  Rep.  416;  Crowder  v.  Town  of  Sullivan,  128 
Ind.  486,  28  N.  E.  94,  13  L.  R.  A.  647.  It  is  the  rule  in  this  state 
that  when  a  municipal  corporation  contracts  for  a  usual  and  neces- 
sary thing,  such  as  water  or  light,  and  agrees  to  pay  for  it  annually 
or  monthly,  as  furnished,  the  contract  does  not  create  an  indebted- 
ness for  the  aggregate  sum  of  all  the  installments,  since  the  debt  for 
each  year  or  month  does  not  come  into  existence  until  it  is  earned. 
The  earning  of  each  year's  or  month's  compensation  is  essential  to 
the  existence  of  a  debt.     Crowder  v.  Town  of  Sullivan,  supra,  and 


LIMITATION   OF   INDEBTEDNESS  301 

authorities  cited;  City  of  Valparaiso  v.  Gardner,  supra,  and  cases 
cited;  Poland  v.  Town  of  Frankton,  142  Ind.  546,  41  N.  E.  1031. 
and  authorities  cited;  Seward  v.  Town  of  Liberty,  142  Ind  55l' 
554,  42  N.  E.  39;  1  Dill.  Mun.  Corp.  (4th  Ed.)  §'l36a;  Wade  v! 
Oakmont  Borough,  165  Pa.  479,  30  Atl.  959;  Brown  v.  City  of 
Corry,  175  Pa.  528,  34  Atl.  854.  If  the  city  can  pay  this  indcvnedness 
when  it  comes  into  existence  without  exceeding  the  constitutional 
limit,  there  is  no  indebtedness,  and  therefore  no  violation  of  the  con- 
stitution. But  if  the  indebtedness  of  the  city  already  equals  or  ex- 
ceeds the  constitutional  limit,  and  the  current  reveiuies  are  not  suffi- 
cient to  pay  such  indebtedness  when  it  comes  into  existence,  including 
other  expenses  for  which  the  city  is  liable,  an  indebtedness  is  thereby 
created,  and  there  is  a  violation  of  the  constitution.  City  of  Valpa- 
raiso V.  Gardner,  supra;  Dill.  Mun.  Corp.  §§  136,  136a;  Appeal 
of  City  of  Erie,  91  Pa.  399.  It  is  also  the  law  that  items  of  expense 
essential  to  the  maintenance  of  corporate  existence,  such  as  light, 
water,  labor,  and  the  like,  constitute  current  expense,  payable  out 
of  current  revenues.  Poland  v.  Town  of  Prankton,  142  Ind.  550. 
41  N.  E.  1031.  When  the  current  revenues  are  sufliciciU  to  fully 
pay  the  current  expenses  necessarily  incurred  to  sustain  corporate 
life,  no  indebtedness  is  incurred;  but  a  debt  cannot  be  made  beyond 
the  constitutional  limit,  even  for  the  current  expenses  mentioned,  no 
matter  how  urgent.  Sackett  v.  City  of  New  Albany,  88  Ind.  473, 
45  Am.  Rep.  467;    City  of  Valparaiso  v.  Gardner,  supra. 

It  is  clear,  therefore,  that  whenever  a  city  whose  indebtedness  ex- 
ceeds the  constitutional  limit  does  not  have  money  on  hand  arising 
from  current  revenues  to  meet  its  debts,  of  whatever  character,  as 
they  come  into  existence,  whether  for  light,  water,  labor,  or  any 
other  expense,  the  city  has  become  indebted,  and  the  constitution  is 
violated.  It  is  not  sufficient,  however,  merely  to  have  on  hand  enough 
money  to  pay  each  indebtedness  as  it  comes  into  existence ;  but  the 
same  must  be  paid  as  it  comes  into  existence,  or  there  must  be 
enough  money  on  hand  to  pay  all  of  such  indebtedness  outstanding, 
or  there  is  an  indebtedness  created,  and  the  constitution  is  thereby 
violated.  If,  to  avoid  the  constitutional  inhibition,  it  is  only  neces- 
sary to  have  on  hand  sufiicieiU  money  to  pay  an  indebtedness  when 
it  comes  into  existence,  without  itaying  or  keeping  on  hand  enough 
money  to  pay  it,  there  would  be  no  restraiiU  u|)on  the  power  of  a 
mum'cipality  to  become  indel)led.  Obligations  payable  out  of  a  par- 
ticular fund,  and  for  which  the  finid  only,  and  nf)t  the  nuniictpaHlv, 
is  liable,  are  not  within  the  inhibition.  Quill  v.  Indian;i|H(lis.  \2\ 
Ind.  292,  23  N.  E.  7i<i<,  7  L.  R.  A.  USl  ;  Strieb  v.  Cox,  111  Ind.  2'f>. 
12  N.  E.  481;  Board,  etc.,  v.  Hill.  115  Ind.  316.  16  N.  E.  156;  City 
of  New  Albany  v.  McCulIoch.  127  Ind.  500.  505.  26  N.  E.  1074;  Hitch- 
cock V.  Galveston.  96  U.  S.  341,  24  L.  Ed.  659;  City  of  iW  <  v, 
Heard.  54  Tex.  420;  Davis  v.  Des  Moines.  71  Iowa.  5i'  .  ...  N. 
W.  470;   Baker  v.  City  of  Seattle,  2  Wa^h.  576.  27  Par.  462;    Au5- 


302  DEBTS,  FUNDS,  EXPENSES    AND    ADMINISTRATION 

tin  V.  City  of  Seattle,  2  Wash.  673,  27  Pac.  557.  The  same  rule  ap- 
plies to  agreements  to  accept  certificates  of  assessments  in  full  satis- 
faction. Davis  V.  Des  Moines,  supra.  But  anything  that  renders 
the  city  liable  brings  the  indebtedness  within  the  restriction.  Fowler 
V.  City  of  Superior,  85  Wis.  411,  54  N.  W.  800. 

It  is  held  in  some  states,  under  constitutional  provisions  substan- 
tially the  same  as  ours,  that  a  municipality  which  has  reached  its 
limit  may  anticipate  the  collection  of  the  revenue  appropriated  to  its 
use,  by  drawing  warrants  against  taxes  levied,  but  not  collected ;  thus 
substantially  appropriating  and  assigning  the  amount  drawn  to  the 
holder  of  the  warrant.  French  v.  City  of  Burlington,  supra;  Law 
v.  People,  87  111.  385;  City  of  Springfield  v.  Edwards,  84  111.  626; 
City  of  East  St.  Louis  v.  Flannigan,  26  111.  App.  449;  Koppikus  v. 
State  Capitol  Com'rs,  16  Cal.  248.  But,  in  order  to  escape  the  in- 
hibition of  the  constitution,  the  tax  must  not  only  have  been  levied, 
but  the  warrant  must  be  drawn,  payable  out  of  the  particular  fund, 
and  be  such,  in  legal  effect,  as  to  discharge  the  municipality  from  all 
liability.  City  of  Springfield  v.  Edwards,  supra;  Law  v.  People, 
supra;  Fuller  v.  Chicago,  89  111.  282;  People  v.  May,  9  Colo.  404, 
12  Pac.  838.  In  City  of  Valparaiso  v.  Gardner  this  court  said:  "If 
a  bond,  note,  or  other  obligation  is  executed,  then,  doubtless,  a  debt  is 
created,  for  such  things  constitute  evidences  of  indebtedness.  *  *  * 
So,  if  the  consideration  of  the  contract  is  received  at  once,  instead 
of  being  yielded  at  intervals,  then  it  might  be  said  that  there  was  a 
debt ;  but  where  nothing  is  owing  until  after  the  thing  contracted 
for  is  done  or  furnished,  and  that  thing  is  a  part  of  the  necessary 
expense  of  the  municipality,  there  will  be  no  debt,  if,  when  the 
thing  is  done  or  furnished,  there  will  be  money  in  the  treasury,  yielded 
by  current  revenues,  sufficient  to  fully  pay  the  claim,  without  en- 
croaching upon  other  funds." 

Conceding,  without  deciding,  that  a  fire-alarm  system  is  a  neces- 
sary or  ordinary  annual  expense  of  a  municipality,  and  essential  to 
its  existence,  yet  appellee's  claim  is  within  the  inhibition  of  the  con- 
stitution. In  this  case  it  is  not  material  whether  the  indebtedness 
came  into  existence  on  December  18,  1890,  when  appellee  completed 
the  work,  and  the  same  was  accepted  by  appellant,  or  at  the  date  of 
the  contract,  August  5,  1890.  It  is  clear  that  the  indebtedness  came 
into  existence  December  18th,  when  the  work  was  completed  and 
accepted,  if  not  before.  There  was  not  sufficient  cash  in  the  city 
treasury  to  pay  said  indebtedness  at  that  time,  and  the  constitutional 
provision  was  violated.  But  it  is  urged  that  the  debt  was  not  payable 
until  May  1,  1891,  and  that  there  was  sufficient  cash  in  the  treasury 
to  pay  the  same  at  that  time.  The  rule  is  that  the  cash  must  be  in 
the  treasury  to  pay  the  same  when  the  debt  comes  into  existence,  not 
when  it  becomes  due  (City  of  Valparaiso  v.  Gardner,  97  Ind.  8,  49 
Am.  Rep.  416);  otherwise,  the  city  could  issue  bonds  for  borrowed 
money  or  other  existing  indebtedness,  or  become  so  indebted  in  other 


BORROWING   MONEY  303 

ways,   far  in  excess  of  the  constitutional   limit,  and  bv  makin-  the 

same  payable  m  annual  installments,  and  each  year  lev'vin-  and"  col 

lectmg  sufhcient  taxes  to  pay  the  same,  avoid  the  constitutional  in- 

hlhltinn.         *         *         *         Tft^irarc^A 


hibition.     *     *     *     Reversed'. 


II.  Borrowing  Money  ' 


ALLEN  V.  CITY  OF  LA  FAYETTE. 

(Supreme  Court  of  Alabama,  1S90.    89  Ala.  641,  8  South.  30.  9  L.  R.  A.  497.) 
The  bill  in  this  case  was  filed  by  the  appellants  against  the  appellee, 
and  sought  to  enjoin  the  payment  of  warrants  bv  the  town  treasurer 
Lpon  consideration,  the  chancellor  overruled  a  motion  to  dismiss  the 
bill,  and  decreed  that  the  injunction  be  dissolved.     The  complainants 
prosecute  this  appeal,  and  assign  this  decree  of  the  chancellor  as  error. 
McClELLAn,  J.-*     The  intendant  and  councilmen  of  the  town  of 
La  Fayette  on  or  soon  after   March   18.   1889.  purchased  from  one 
Schuessler  a  brick  college  building  and  grounds,  situate  in  La  Fayette, 
and  took  a  quitclaim  deed  of  the  property  to  themselves,  the  said  in- 
tendant and  councilmen.     Only  a  small  part  of  the  purchase  money 
was  paid  out  of  the  funds  of  the  town,  and  the  balance,  about  $l..^o6. 
was  borrowed  from  Mrs.  S.  A.  Frederick  by  the  town  authorities,  and 
paid  to  Schuessler.     For  the  repayment  of  this  loan,  warrants  were 
regularly  drawn  against  the  treasury  of  the  town  for  the  sums  of 
$659.40  payable  January  1,  1890,  and  $667.72.  payable  March  1.  18*>0. 
respectively,  and  delivered   to   Mrs.   Frederick.  '  The  present  bill   is 
exhibited  by  resident  property  owners  and  tax-payers  of  tlic  town  of 
La  Fayette,  and  seeks  to  enjoin  the  payment  of  .said  warrants  on  the 
grounds  (1)  that  the  municipality  of  La  FayeKe  was  without  authority 
to  purchase  the  school-hou.se  or  college  building,  and  that  the  money 
was  loaned  by  Mrs.  Frederick  with  full  knowledge  that  it  was  to  be 
used  in  that  behalf,  and  warrants  taken  by  her  with  full  kn«nvlcdgc 
that  it  had  been  so  applied;  and  (2)  that  the  intendant  and  councilmen 
of  the  town  of  La  Fayette  had  no  power  under  its  charter  to  Inirrow 
money  for  any  purpose. 

2.  Assuming  that  the  theory  of  the  bill  as  to  the  ixm-crs  of  the 
municipality,  and  as  to  the  character  of  the  transaction  between  the 
intendant  and  councilmen  on  the  one  hand,  and  Mrs.  I'Vcdcrick  on  the 
other,  is  souufl.  the  right  of  these  complainants  to  maintain  the  suit 
is,  as  a  general  [)roi)f)sition,  fully  su|)poried  by  tlic  anthoritirs.  and 
not  seriously  controverted  by  the  apjiellees.     2  Iliirh.   Inj.  (5    12.^7  ct 

3  For  dlsfiission  of  |)rlii<iplfH.  ntw  ('(mh-y,  ,Miiri.  ('nrp.  i   li;7. 

*  TIh"  stiitriiiciit  nf  r.K't.s  i.s  rewritten  and  part  "f  tl i.liii..ii  lu  ninlifcj. 


304  DEBTS,  FUNDS,  EXPENSES    AND    ADMINISTRATION 

seq.;   2  Dill.  Mun.  Corp.  §  914  et  seq. ;    1  Pom.  Eq.  Jur.  §§  258-260, 
270,  273 ;    10  Amer.  &  Eng.  Enc.  Law,  963. 

3.  The  first  ground  upon  which  the  prayer  for  relief  is  based  is  in 
our  opinion  untenable.  The  charter  of  La  Fayette  empowers  the  mu- 
nicipal authorities  to  purchase  and  hold,  or  dispose  of,  for  the  benefit 
of  the  town,  real,  personal,  and  mixed  property,  to  the  value  of  $15,- 
000.  Power  is  also  conferred  to  maintain  public  schools  within  the 
town;  and  to  this  end,  as  well  as  to  defray  the  ordinary  expenses  of 
municipal  government,  the  corporate  authorities  may  levy  an  annual 
tax  not  exceeding  one-half  of  1  per  cent,  on  the  assessed  value  of  the 
property  thereof.  Acts  1880-81,  p.  420;  Acts  1888-89,  p.  1061.  We 
do  not  doubt  that  under  these  grants  of  power  the  municipality  of 
La  Fayette  was  fully  authorized  to  purchase  and  hold  a  school-house 
such  as  the  present  bill  alleges  to  have  been  purchased  by  the  intendant 
and  councilmen  of  the  town.    2  Dill.  Mun,  Corp.  §  561  et  seq. 

4.  The  taxing  power  is  conferred  on  municipal  corporations,  of 
course,  for  the  purpose  of  providing  means  with  which  to  meet  their 
current  expenses  incurred  in  the  performance  of  the  duties  resting  on 
them  as  governmental  agencies ;  and  it  may  ordinarily  be  assumed  the 
means  thus  provided  are  adequate  to  the  ends  in  view.  Yet,  in  the 
nature  of  things,  it  is  impracticable,  if  not  indeed  impossible,  for  the 
powers  of  such,  or  any,  corporations  to  be  exercised  without  incurring 
liabilities  beyond  the  funds  immediately  in  hand,  and  thus  anticipat- 
ing corporate  revenues.  In  recognition  of  a  necessity  of  this  kind, 
it  may  be  said  that  the  law  has  come  to  be  well  settled  to  the  effect 
that  municipal  corporations  may  create  debts  in  the  accomplishment 
of  any  object  clearly  within  their  powers,  and  reasonably  essential  to 
the  attainment  of  their  charter  purposes.  Custom  of  long  standing 
and  universal  adoption,  if  not  express  law,  has  sanctioned  the  evi- 
dencing of  such  debts  by  the  drawing  of  warrants  therefor  on  dis- 
bursing officers  in  favor  of  creditors. 

Applying  these  principles  to  the  exigencies  which  presented  them- 
selves to  the  intendant  and  councilmen  of  La  Fayette,  when,  in  their 
judgment,  the  good  of  the  town  demanded  the  purchase  of  a  school- 
house,  we  do  not  question  that  it  was  competent  for  them  to  buy  the 
property  which  they  did  buy  on  a  credit,  and  thus  incur  a  debt  to  the 
extent  of  the  price  they  were  to  pay,  the  value  of  the  property  as 
measured  by  the  price  not  being  in  excess,  when  added  to  the  value  of 
other  property  already  owned  by  the  corporation,  of  $15,000,  and 
the  property  being  of  a  class  and  character  appropriate  to  corporate 
uses  in  the  discharge  of  legitimate  municipal  functions.  Nor  do  we 
doubt  that,  for  a  debt  thus  created,  warrants  might  legally  have  been 
drawn  on  the  town  treasury,  payable  at  stated  dates  to  the  vendor. 
Had  this  been  done,  these  evidences  of  the  indebtedness  might  have 
been  sold  and  transferred  by  the  vendor  to  Mrs.  Frederick,  and  she 
thereby  subrogated  to  all  the  rights  of  the  first  holder. 


BORROWING   MONEY  30o 

The  case  alleged  by  the  bill  and  admitted  in  the  answers  differs 
from  the  case  hypothetically  stated  in  this,  and  only  in  this,  in  sub- 
stance and  effect,  that  Mrs.  Frederick,  instead  of  paying  the  money 
to  the  town  creditor,  paid  it  to  the  town  itself,  and  the  latter  im- 
mediately, and  as  upon  prearrangement  known  to  all  parties,  paid  to 
Schuessler,  and  in  consideration  thereof  received  a  conveyance  of  the 
college  building.  Slight  as  the  difference  appears  on  its  face  to  be, 
it  has,  in  our  opinion,  the  important  operation  of  converting  the  trans- 
action into  a  loan  of  money  by  Mrs.  Frederick  to  the  corporation,  and 
left  in  her  hands  a  contract  for  its  repayment  which,  as  such,  she  can- 
not enforce,  for  the  reason  that  this  contract  is  ultra  vires  the  town 
of  La  Fayette.  Its  charter  nowhere  expressly  confers  power  on  the 
corporate  authorities  to  borrow  money  for  any  purpose,  or  under  any 
circumstances.  And  whatever  may  be  the  decisions  of  other  courts, 
and  however  variant  may  be  the  judicial  opinion  in  other  jurisdictions, 
on  the  point,  the  doctrine  is  thoroughly  well  settled  in  Alabama  that, 
the  power  to  borrow  money  is  not  incident  to  municipal  corporations, 
and  that,  if  it  exists  in  any  instance,  it  must  be  by  the  force  of  ex- 
press legislative  grant,  or  at  least  by  force  of  legislative  investment 
of  power  coupled  with  the  imposition  of  duties  which  are  incapable 
of  exercise  and  performance  without  the  borrowing  of  money.  \Vc 
need  not  enter  upon  a  discussion  of  the  reasons  which  underlie  this 
doctrine.  They  are  many  and  cogent,  and  most  clearly  stated  by 
Judge  Dillon,  Justice  Bradley,  and  in  former  adjudications  of  this 
court  which  establish  the  proposition.  1  Dill.  Mun.  Corp.  §§  117. 
126;  Mayor  V.  Ray,  19  \\'all.  475,  22  L.  Ed.  164;  Simpson  v.  Lauder- 
dale Co.,  56  Ala.  64;  Wetumpka  v.  Wharf  Co.,  63  Ala.  611. 

5.  The  intendant  and  councilmen  of  La  Fayette  had  no  authority, 
therefore,  to  borrow  this  money,  nor  had  they  any  authority  to  draw 
the  warrants  which  were  drawn  and  delivered  to  Mrs.  Frederick. 
They  were  the  trustees  for  the  inh.uhitants  o{  the  town.  'I'heir  action 
in  excess  of  the  power  with  which  the  trust  relation  clothed  tliem,  and 
in  violation  of  the  duties  they  owed  to  their  cesluis  que  trustent.  the 
present  complainants,  among  others,  was  of  no  maimer  of  cfllcacy  in 
fixing  a  liability  on  those  for  whom  they  thus  usurpeii  the  power  of 
acting.  The  warrants  in  the  hands  of  Mrs.  Frederick  arc  as  if  they 
were  not,  and  had  never  been.  Neither  the  nnmicipality  of  La  I'".iy- 
ette,  nor  any  of  its  ofTicers  or  agents,  is  under  any  oblif^'ation,  lejjal. 
equitable,  or  moral,  to  pay  those  warrants,  or  to  fullill  the  contract 
out  of  which  they  sjirung.  But  back  of  that  contract,  .iiic!  back  of 
those  warrants,  there  is,  on  the  facts  presented  by  the  bill  and  ac- 
centuated by  the  answers,  not  only  a  moral  but  a  legal  liability  resting 
on  the  municipality  of  La  Fayette,  and  on  its  officcr.H,  to  repay  the 
money  which  came  from  Mrs.  Frederick,  and  has  been  u.sc<l  by  the 
corporation  for  authorized  corporate  piirp<ises.  In  other  words,  the 
town  of  La  Fayette  is  liable  as  upon  an  implied  assumpsit,  not  under, 
COOLEY  Ca.ses  Mujj.C— liO 


306  DEBTS,  FUNDS,  EXPENSES    AND    ADMINISTRATION 

but  wholly  apart  from,  the  unauthorized  contract,  and  not  for  the 
amount  its  officers  borrowed  from  Mrs.  Frederick,  but  for  the  amount 
of  her  money  which  they  received  and  appHed  to  the  purchase  of  a 
house  which  the  charter  authorized  them  to  buy  and  the  town  to  hold, 
which  was  reasonably  necessary  to  the  exercise  and  performance  of 
expressly  granted  and  imposed  functions  and  duties,  and  which  the 
use  of  her  funds  had  enabled  the  corporation  to  acquire  and  devote 
to  its  legitimate  purposes. 

The  authorities  are  not  imiform  to  this  proposition.  It  is  however 
believed  to  be  eminently  sound  in  principle,  and  has  the  support  of 
some  of  the  most  distinguished  law-writers,  and  of  courts  of  marked 
ability  and  learning.  It  is  thus  formulated  by  Mr.  Brice  with  general 
reference  to  both  public  and  private  corporations :  "Persons  who  have 
in  any  way  advanced  money  to  a  corporation,  which  money  has  been 
devoted  to  the  necessaries  of  the  corporation,  are  considered  in  chan- 
cery [and,  also,  it  would  seem  to  follow,  in  the  equitable  action  for 
money  had  and  received  at  law]  as  creditors  of  the  corporation  to  the 
extent  the  loan  has  been  expended,"  and,  in  support  of  the  doctrine 
thus  stated,  he  cites  many  cases  in  which  corporations  without  any 
authority,  expressed  or  implied,  to  that  end  had  borrowed  money,  and 
been  holden,  although  the  contract  itself  was  wholly  void,  to  account 
for  so  much  of  it  as  had  been  expended  in  furthering  the  legitimate 
objects  of  the  concern.  Green's  Brice,  Ultra  Vires,  724  et  seq.  And 
in  this  connection  the  American  editor  of  the  work  cited  observes : 
"In  the  United  States  the  defense  of  ultra  vires,  interposed  against  a 
contract  wholly  or  in  part  executed,  has  very  generally  been  looked 
upon  with  disfavor.  The  result  has  been  that  in  some  cases  a  liberal 
construction  has  been  applied  so  as  to  destroy  the  foundation  of  the 
defense ;  in  others,  the  courts  have  allowed  the  recovery  of  the  money 
paid,  not  upon  the  contract,  but  because  of  the  money  received  and 
the  benefits  enjoyed;  while  in  still  another  class  of  cases  the  doctrine 
of  estoppel  in  pais  has  been  applied  to  exclude  the  defense."  And 
many  American  cases  are  cited  which  support  one  or  the  other  of  the 
positions  stated  as  being  taken  by  the  courts  of  this  country  in  respect 
to  private  corporations. 

In  regard  to  municipal  corporations,  the  opinion  of  Judge  Dillon 
manifestly  is  in  line  with  the  position  we  have  taken.  We  believe  this 
to  be  a  correct  formulation  of  his  view  of  the  law  on  the  point  under 
consideration,  as  gathered  from  his  inestimable  work  on  Municipal 
Corporations.  That  municipal  corporations  are  liable  to  action  of  im- 
plied assumpsit  with  respect  to  money  or  property  received  by  them 
and  applied  beneficially  to  their  authorized  objects  through  contracts 
which  are  simply  unauthorized,  as  distinguished  from  contracts  which 
are  prohibited  by  their  charters,  or  some  other  law  bearing  upon  them, 
or  are  malum  in  se,  or  violative  of  public  policy.  1  Dill.  Mun.  Corp. 
§§  126,  132,  133,  459-465 ;  2  Dill.  Mun.  Corp.  §§  936-938.  Thus  in 
a  note  to  section   126  it  is  said :    "If  money  is  improperly  borrowed 


BORROTVING    MONEY  307 

in  advance  of  liabilities  actually  created,  and  reaches  the  municipal 
treasury,   and  is  expended  by   direction  of   the  governing  body   for 
authorized  municipal  objects,  the  municipality  may  then     *     *     *     be 
liable  in  a  proper  action  or  suit ;  but  the  action  'should  be.  we  think, 
for  money  had  and  received,  or  by  suit  in  equity,  and  not  upon  the 
invalid  bonds."     And  under  section  935  it  is  said  that,  "where  the 
corporation  receives  and  retains  the  consideration  of  an  ultra  vires 
contract,  it  may  be  liable  upon  an  implied  assumpsit  in  respect  to  such 
consideration."     And  the  opinion  of   Chief  Justice   Field   in   a  case 
where  the  subject  underwent  very   thorough   examination   is   quoted 
approvingly  to  the  effect  that  "the  doctrine  of  implied  municijial  lia- 
bility applies  to  cases  where  money  or  property  of  a  party  is  received 
under  such  circumstances  that  the  general  law,  independent  of  express 
contract,  imposes  the  obligation  upon  the  city  to  do  justice  with  re- 
spect to  the  same.    If  the  city  obtain  money  of  another  by  mistake  or 
without  authority  of  law,  it  is  her  duty  to  refund  it,  not  from  anv  con- 
tract entered  into  by  her  on  the  subject,  but  from  the  general  obliga- 
tion to  do  justice,  which  binds  all  persons,  whether  natural  or  artificial. 
If  the  city  obtain  other  property  which  does  not  belong  to  her,  it  is 
her  duty  to  restore  it,  or  if  used  by  her,  to  render  an  equivalent  to 
the  true  owner  from  the  like  general  obligation ;  the  law,  which  always 
intends  justice,  implies  a  promise."    Argenti  v.  San  Francisco.  16  Cal. 
255.    Justice  ^Miller,  speaking  of  cases  where  corporations  have  been 
sued  on  contracts  which  they  have  successfully  resisted  because  they 
were  ultra  vires,  observes:   "But  even  in  this  class  of  cases,  the  courts 
have  gone  a  long  way  to  enable  parties  who  have  i^arted  with  property 
or  money  on  the  faith  of  such  contracts  to  obtain  justice  by  recovery 
of  the  property  or  the  money,  specifically,  or  as  money  had  and  re- 
ceived to  plaintiff's  use."    Salt  Lake  City  v.  Hollister,  ilS  U.  S.  256. 
6  Sup.  Ct.   1055,  30  L.  Ed.  176.     To  a  like  effect  are  the  fcjllowing 
cases:    Pimental  v.  San  Francisco,  21  Cal.  362;    Clark  v.  Saline  Co.. 
9  Neb.  516,  4  N.  W.  246;    Marsh  v.  Fulton  Co.,  10  Wall.  676.  19  I.. 
Ed.  1040;    Louisiana  v.  Wowl,  102  U.  S.  294,  26  L.  Ed.  153:   Chap- 
man v.  County  of  Douglas,  107  U.  S.  348,  2  Sup.  Ct.  62,  27  L.  Ed. 
378.     *     *     * 

We  find  no  adjudication  in  Alabama  irreconcilable  with  the  doctrine 
of  the  foregoing  authorities.  There  are  indeed  cases  which  hold  that 
recovery  cannot  be  had  upon  the  ultra  vires  contract  of  lx)rro\ving. 
Such  was  the  case  of  Simpson  v.  Lauder«lalc  Co.  The  gravamen  of 
that  action  was  that  the  county  had  agreed  to  pay  a  certain  stun  of 
money,  and  that  this  sum  had  been  loaned  to  the  county  to  pay  for 
building  a  bridge.  It  was  not  sought  to  charge  the  county  for  that 
it  had  received  plaintiff's  money  and  actually  used  it  for  a  1<  ;c 

county  purpose.  No  question  arose  or  was  discussed  in  that  case  in- 
volving the  implied  liability  of  the  county  1  of  th.  -c 
which  hafl  accrued  to  it  and  all  it*;  inhabitaiii-  ii-in  the  •  ..ne 
of  the  plaintiff'',  niriney  in  a  structure  which  the  law  auti               it  to 


308  DEBTS,  FUNDS,  EXPENSES    AND    ADMINISTRATION 

erect.  It  was  not  even  shown  what  became  of  the  money,  further 
than  that  it  was  borrowed  for  the  purpose  of  being  so  expended.  And 
a  right  of  recovery  was  denied  because  it  was  rested  upon  and  in- 
volved the  assumption  of  the  vaHdity  of  an  undertaking  which  the 
county  was  without  power  to  enter  into.  We  do  not  understand  the 
opinion  to  go  further  than  this ;  the  matter  decided  certainly  does  not ; 
and  to  this  extent  it  is  in  perfect  accord  with  the  position  we  have 
taken.  The  same  view  may  be  taken  of  the  case  of  Wetumpka  v. 
Wharf  Co.,  supra,  supported  by  the  further  consideration  that  the 
uses  to  which  the  borrowed  money  was  put  in  that  case  were  them- 
selves ultra  vires,  and  not  only  was  the  contract  without  authority  and 
void,  but  there  was  a  misappropriation  of  the  fund,  accomplished  or 
contemplated,  so  as  to  preclude  the  implication  of  corporate  liability 
from  corporate  benefits  received.     *     *     * 

Our  conclusion  is  that  the  weight  of  authority  is  in  favor  of  the 
implied  liability  of  municipal  corporations,  under  the  facts  disclosed 
in  this  record.  We  cannot  perceive  that  the  doctrine  is  open  to  ob- 
jection on  the  ground  of  its  supposed  evil  tendencies  and  conseciuences. 
It  is  shorn  of  all  perilous  possibilities  by  the  limitations  which  hedge 
it  about.  It  cannot  obtain  where  the  charter,  or  other  statute  operating 
in  the  premises,  contains  a  prohibition  of  the  power  to  borrow  money, 
since  a  promise  cannot  be 'implied  in  the  face  of  express  law,  but  only 
in  cases  where,  as  in  this  one,  there  is  merely  a  defect  of  power.  1 
Dill.  Mun.  Corp.  §  461.  It  involves  no  danger  of  the  municipality 
being  charged  with  moneys  which  have  been  appropriated  by  its  offi- 
cers to  their  own  use,  or  even  to  the  use  of  the  corporation,  except  in 
the  manner,  to  the  extent,  and  for  the  purposes  authorized  by  the 
charter,  as  in  either  case  the  implication  will  not  arise,  and  corporate 
liability  will  not  attach.  None  of  the  evils  which  are  justly  supposed 
to  result  from  the  power  to  borrow  money,  which  are  not  also  at- 
tendant upon  the  capacity  to  incur  debts,  and  which  therefore  have 
led  to  a  denial  of  the  former  power  unless  expressly  or  by  necessary 
intendment  conferred,  while  the  latter  is  admitted  as  incident  to  ordi- 
nary municipal  functions,  can  possibly  supervene  where  the  money 
which  has  been  borrowed  has  also  been  honestly  devoted  to  expendi- 
tures for  which  the  corporate  authorities  might  have  incurred  debt. 
And,  to  declare  liability  in  the  one  instance,  and  deny  it  in  the  other, 
on  the  ground  of  evils  which  pertain  alike  to  both,  would  be  an 
anomaly  to  which  we  cannot  subscribe.  Indeed,  we  apprehend  that 
the  power  to  create  debts  may  be  productive  of  more  evils  in  mu- 
nicipal government  than  could,  in  the  nature  of  things,  result  from 
the  doctrine  we  are  considering,  when  would-be  lenders  of  money 
come  to  understand  that  the  return  of  their  proverbially  timid  capital 
depends  not  upon  the  contracts  they  make,  but  on  the  faithful  applica- 
tion of  the  loan  to  certain  specific  objects,  by  persons  over  whom  they 
have  no  control. 


MUNICIPAL   BONDS— POWER  TO   ISSUE  309 

From  every  point  of  view,  therefore,  we  feel  safe  in  affirming  that 
under  the  case  presented  by  the  bill  and  answer,— there  really  being 
no  dispute  about  the  facts  in  this  regard,-Mrs.  Frederick  has'a  valid 
demand  agamst  the  town  of  La  Fayette  for  the  amount  of  money  ad- 
vanced by  her,  not  because  the  corporate  authorities  agreed  to  repav 
It  to  her,  but  because  they  have  legitimately  used  it  for  the  benefit  of 
the  town,  m  a  way  and  to  an  end  fully  authorized  by  its  charter.  The 
warrants  she  holds  are  not  enforceable  as  such,  yet  they  truly  rep- 
resent the  amount  of  her  claim,  and  in  the  payment  of  that  amount 
the  corporate  authorities  would  do  no  more  than  equity  and  iu>^tice 
require  of  them.     *     *     *     Affirmed. 


III.  Municipal  Bonds — Power  to  Issue  » 


MERRILL  v.  TOWN  OF  MOXTICELLO. 

(Supreme  Court  of  the  United  States,  1S91.    138  U.  S.  U73,  11  Sup.  Ct.  411. 

34  L.  Ed.  1009.) 

In  error  to  the  Circuit  Court  of  the  United  States  for  the  District 
of  Indiana. 

This  was  an  action  at  law  by  Abner  T,-  Merrill,  a  citizen  of  Massa- 
chusetts, against  the  town  of  Monticello,  in  the  state  of  Indiana,  up- 
on certain  bonds  and  coupons  issued  by  the  town,  and  purchased  by 
the  plaintiff  in  open  market.  There  was  judgment  for  defendant  and 
plaintiff  brings  error. 

Mr.  Justice  Lamar. °  The  decisive  question  presented  by  the 
record  in  this  case  is,  did  the  town  of  Monticello  have  authority, 
under  the  laws  of  Indiana,  to  issue  for  sale  in  ojk-h  market  negotia- 
ble securities  in  the  forms  of  the  bonds  and  con|)<Mis  on  which  re- 
covery is  here  sought?  Chancellor  Kent,  in  his  CoTjuni-ntaries.  (vol- 
ume 2,  pp.  298,  299,)  referring  to  the  strictness  with  which  corporate 
powers  are  construed,  irrespective  of  the  distinction  betwcin  |»nl»lic 
and  private  corporati(jns,  uses  the  following  language:  "The  nuxl- 
ern  doctrine  is  to  consider  corporations  as  having  such  powers  as 
are  specifically  granted  by  the  act  of  inc«)rporatinn,  or  as  arc  neces- 
sary for  the  purpose  of  carrying  into  effect  the  powers  expressly 
granted,  and  as  not  having  any  other.  The  supreme  court  of  the 
United  States  declared  this  obvious  doctrine,  and  it  has  been  repeated 
in  the  decisions  of  the  state  courts.  *  *  *  As  corporations  are 
the  mere  creatures  of  law,  established  for  special  |)»>rposes,  and  <W 
rive  all  their  powers  from  the  acts  creating  them,  it  is  prrfrctlv  just 

B  For  flisfiisHioii  (if  iirliiciiilcM.  noo  r«iil<'y.  Mnn.  Con*.   II   IL"'.   H."-* 

«  The  statement  of  facts  Is  abridged  and  part  of  tin*  'Hiliii'-n  i..  ..mlitcd. 


olO  DEBTS,  FUNDS,  EXPENSES    AND    ADMINISTRATION 

and  proper  that  they  should  be  obhged  strictly  to  .show  their  author- 
ity for  the  business  they  assume,  and  be  confined,  in  their  operations, 
to  the  mode  and  manner  and  subject-matter  prescribed." 

Judge  Dillon,  in  his  work  on  Municipal  Corporations,  (section 
89,)  says:  "It  is  a  general  and  undisputed  proposition  of  law  that 
a  municipal  corporation  possesses  and  can  exercise  the  following 
powers,  and  no  others :  First,  those  granted  in  express  words ; 
second,  those  necessarily  or  fairly  implied  in  or  incident  to  the  pow- 
ers expressly  granted;  third,  those  essential  to  the  declared  objects 
and  purposes  of  the  corporation, — not  simply  convenient,  but  indis- 
pensable. Any  fair,  reasonable  doubt  concerning  the  existence  of 
power  is  resolved  by  the  courts  against  the  corporation,  and  the 
power  is  denied." 

In  Hopper  v.  Covington,  118  U.  S.  148,  151,  6  Sup.  Ct.  1025,  30 
L.  Ed.  190,  this  court,  in  passing  upon  the  power  of  incorporated 
towns  in  Indiana,  under  laws  which  we  will  have  to  consider  and  pass 
upon   in  this  case,  said,   Mr.  Justice   Gray   delivering  the   opinion : 
"When  the  law  confers  no  authority  to  issue  the  bonds  in  question 
the  mere  fact  of  their  issue  cannot  bind  the  town  to  pay  them,  even  to 
a  purchaser  before  maturity  and  for  value.     Marsh  v.  Fulton  Co.,  10 
Wall.  676,  19  h.  Ed.  1040;  East  Oakland  v.  Skinner,  94  U.  S.  255, 
24  L.  Ed.  125 ;  Buchanan  v.  Litchfield,  102  U.  S.  278,  26  L.  Ed.  138 
Dixon  Co.  V.  Field,  111  U.  S.  83,  4  Sup.  Ct.  315,  28  L.  Ed.  360 
Hayes  v.  Holly  Springs,  114  U.  S.  120,  5  Sup.  Ct.  785,  29  L.  Ed.  81 
Daviess  Co.  v.  Dickinson,  117  U.  S.  657,  6  Sup.  Ct.  897,  29  L.  Ed. 
1026." 

In  Cause  v.  Clarksville,  5  Dill.  165,  Fed.  Cas.  No.  5,276,  the  court, 
in  an  able  discussion  of  the  inherent  and  incidental  authority  of  mu- 
nicipal corporations,  holds  that  whether  a  municipal  corporation  pos- 
sesses the  power  to  borrow  money,  and  to  issue  negotiable  securities 
therefor,  depends  upon  a  true  construction  of  its  charter,  and  the  leg- 
islation of  the  state  applicable  to  it. 

In  order  to  determine  the  question  before  us,  recourse  must  be 
had  to  the  statutory  enactments,  applicable  to  the  subject,  that  were 
in  force  at  the  time  the  bonds  in  this  suit  were  issued,  in  May,  1878. 
These  enactments  are  contained  in  sections  3333,  3342,  3344,  3345, 
4488,  and  4489  of  the  Revised  Statutes  of  Indiana  of  1881.  Section 
3333  is  a  section  of  the  act  of  1852  for  the  incorporation  of  towns  in 
that  state,  and  contains  the  usual  grant  of  municipal  powers.  Sec- 
tion 3342,  which  was  also  section  27  of  the  same  act  of  1852,  provides 
as  follows :  "No  incorporated  town,  under  this  act,  shall  have  pow- 
er to  borrow  money  or  incur  any  debt  or  Uability,  unless  the  citizen 
owners  of  five-eighths  of  the  taxable  property  of  such  town,  as  evi- 
denced by  the  assessment  roll  of  the  preceding  year,  petition  the 
board  of  trustees  to  contract  such  debt  or  loan.     *     *     *  " 

The  other  sections  contain  the  provisions  of  certain  statutes  passed 
in  1867,  1869,  and  1873.     It  is  only  necessary  to  quote  here  sections 


MUNICIPAL   BONDS — PQ-VVER   TO    ISSUE  311 

4488  and  4489,  as  they  embody  the  provision  of  the  act  of  1873, 
which  is  itself  the  statute  of  1869  rewritten  in  order  to  extend  to 
other  purposes  not  material  to  this  inquiry. 

"Sec.   4488.  Any   city   or  incorporated  town   in  this   state   which 
shall,  by  the  action  of  its  school  trustees,  have  purchased  any  ground 
and  building  or  buildings ;  or  may  hereafter  purchase  any  ground 
and   building   or   buildings ;   or  has    commenced,   or  may   hereafter 
commence,  the  erection  of  any  building  or  buildings  for  school  pur- 
poses ;  or  w'hich  shall  have,  by  its   school  trustees,  contracted  any 
debts  for  the  erection  of  such  building  or  buildings,  or  the  purchase 
of  such  ground  and  building  or  buildings ;  or  such  trustees  shall  not 
have  the  necessary  means  with  which  to  complete  such  building  or 
buildings,  or  to  pay  for  the  purchase  of  such  ground  and  building  or 
buildings,  or  pay  such  debt, — may,     *     *     *     on  the  passage  of  an 
ordinance  authorizing  the  same  by  the  common  council  of  said  city, 
or  the  board  of  trustees  of  such  town,  issue  the  bonds  of  such  city  or 
town  to  an  amount  not  exceeding,  in  the  aggregate,  fifty  thousand 
dollars,  in  denominations  not  less  than  one  hundred  nor  more  than 
one  thousand  dollars,  and  payable  at  any  place  that  may  be  desig- 
nated in  the  bonds  (the  principal  in  not  less  than  one  year  nor  more 
than  twenty  years  after  the  date  of  such  bonds,  and  the  interest  an- 
nually or  semi-annually,  as  may  be  therein  provifled)  to  provide  the 
means  with  which  to  complete  such  building  or  buildings,  or  to  pay 
for  the  purchase  of  such  ground  and  building  or  buildings,  and  to 
pay   such   debt.     Such  common  council  or  board   of  trustees   may, 
from  time  to  time,  negotiate  and  sell  as  many  of  such  bonds  as  may 
be  necessary  for  such  purpose,  in  any  place,  and  for  the  best  price 
that  can  be  obtained  therefor  in  cash:     provided,  that   such   bonds 
shall  not  be  sold  at  a  price  less  than  ninety-four  cents  on  the  dol- 
lar.    *     *     ♦" 

We  have  given  these  sections  in  full  to  show  the  entire  legislation 
of  the  state  in  1878  upon  the  sul)ject  of  the  i^ower  of  towns  to  borr..w 
money,  contract  loans,  incur  debts,  and  issue  bonds,  .so  that  it  may  be 
the  more  clearly  determined  whether  it  anywhere  expressly  confers 
upon  incorporated  towns  of  the  state  the  general  power  of  iss\iing. 
for  sale  in  open  market,  negotiable  securities,  in  the  form  of  bonds 
and  coupons,  which,  in  the  hands  of  bona  n<le  ptirchascrs  before  ma- 
turity, will  be  subject  to  no  legal  or  e(|uitable  defenses  in  favor  of 
the  maker.  In  our  opinion  no  such  express  power  is  given  by  thrsp 
sections,  either  for  the  purpo.sc  of  raising  numcy  or  funding  a  i 
vious  indebtedness.  Obviously,  it  cannot  be  found  in  sections  44S.S 
and  4489,  for  they  relate  specifically  and  exclusively  to  bon<ls  for 
school  builrlings,  .school  grounds,  and  .school  debts,  and  prescribe 
the  mode  by  which  bonds  may  be  issued  by  towns  for  those  speci- 
fied objects,— a  mode  confessedlv  not  followed,  or  even  attcmi.ird 
to  be  followed,  in  issuing  the  bonds  in  this  suit.  VVc  are  confirnud 
in  this  conclusion   bv  the  view  taken   in  Hopper  v.  Covington,  su- 


312  DEBTS,  FUNDS,  EXPENSES    AND    ADMINISTRATION 

pra :  "The  averment  that  the  defendant  is  a  municipal  corpora- 
tion under  the  laws  of  Indiana,  'with  full  power  and  authority,  pur- 
suant to  the  laws  of  said  state,  to  execute  negotiable  commercial 
paper,'  if  understood  as  alleging  a  general  power  to  execute  nego- 
tiable commercial  paper,  is  inconsistent  with  the  public  laws  of  the 
state,  of  which  the  courts  of  the  United  States  take  judicial  notice." 

The  laws  of  Indiana  referred  to  are  those  we  are  now  considering. 
The  court  also  says:  "The  general  statute  of  May  15,  1869,  au- 
thorized towns  to  issue  bonds  for  the  purchase  and  erection  of  lands 
and  buildings  for  school  purposes  only."  But  the  bonds  in  suit  were 
not  issued  for  either  of  the  purposes  named,  but  to  retire  and  pay 
off  the  bonds  of  1869.  The  town  had  no  power  to  pay  off  those 
bonds  in  this  way,  viz.,  by  the  issue  of  new  bonds,  or  it  could  per- 
petuate a  debt  forever.  Bonds  once  issued  for  a  lawful  purpose  must 
be  paid  by  taxation.  This  is  manifest  from  the  provision  which  re- 
quires a  tax  to  be  levied  each  year  "sufihcient  to  pay  the  annual  in- 
terest, with  an  addition  of  not  less  than  five  cents  on  the  hundred 
dollars  to  create  a  sinking  fund  for  the  liquidation  of  the  principal." 
When  bonds  are  once  issued  for  a  lawful  purpose,  the  town  is  func- 
tus officio  as  to  that  matter.  To  argue  that  the  old  bonds  are  a  debt 
for  school  purposes,  which  may  be  liquidated  by  new  bonds,  is  a  re- 
finement of  construction  which  the  sound  sense  of  the  law  rejects. 

The  plaintiff  in  error  relies  mainly  upon  the  ground  that  the  au- 
thority in  question  arises,  by  necessary  implication,  from  the  power 
to  make  certain  expenditures,  from  the  character  of  the  objects  to  be 
accomplished  by  those  authorized  expenditures,  from  the  necessity 
of  providing  the  means  for  paying  a  previous  indebtedness  lawfully 
incurred  in  such  expenditures,  and  from  other  powers  expressly 
granted.  The  line  of  his  counsel's  argument,  and  that  of  the  district 
judge  to  whose  opinion  our  attention  has  been  especially  called,  is 
this :  While  section  3342  (the  same  as  section  27  in  the  act  of  May, 
1852)  is  not  in  itself  a  substantive  grant  of  power,  it  clearly  evinces 
the  legislative  intent  and  understanding  that  the  right  to  borrow 
money  or  otherwise  incur  any  debt  or  liability  might  be  implied  as 
incidental  to  the  express  power  given  in  that  or  any  subsequent  act 
containing  not  inconsistent  provisions,  and  includes  a  case  like  this, 
where  the  power  is  necessary  to  prevent  a  default  of  payment  of  a 
previous  debt  which  it  was  authorized  to  create.  It  is  insisted,  fur- 
ther, that  it  is  the  settled  doctrine  in  Indiana  that  corporations  take, 
by  implication,  all  the  reasonable  modes  of  executing  their  express  or 
substantive  powers  which  a  natural  person  may  adopt ;  and  that,  in 
the  absence  of  positive  restrictions,  a  corporation  has  the  power  to 
borrow  money  as  an  incident  to  such  power. 

Section  119,  Dill.  Mun.  Corp.,  lays  down  the  Indiana  law  on  this 
subject  substantially  as  is  contended  for  by  the  plaintiff  in  error. 
T'hat  section  is  as  follows :  "In  Indiana,  the  doctrine  is  that  corpo- 
rations, along  with  the  express  and  substantive  powers  conferred  by 


MUNICIPAL   BONDS — POWER   TO    ISSUE  313 

their  charters,  take  by  impHcation  all  the  reasonable  modes  of  exe- 
cuting such  powers  which  a  natural  person  may  adopt.  It  is  a  pow- 
er incident  to  corporations,  in  the  absence  of  positive  restriction,  to 
borrow  money  as  means  of  executing-  the  express  powers."  A  large 
number  of  cases  from  the  supreme  court  of  Indiana  are  cited  in  a 
note  to  support  the  doctrine  of  the  text.  We  think  the  proposition 
that,  under  the  laws  of  Indiana,  a  town  has  an  implied  authority  to 
borrow  money,  or  contract  a  loan,  under  the  conditions  and  in 
the  manner  expressly  prescribed,  cannot  be  controverted. 

But  this  only  brings  us  back  to  the  question,  does  the  implied  pow- 
er to  borrow  money  or  contract  a  loan  carry  with  it  a  further  implica- 
tion of  power  to  issue  funding  negotiable  bonds  for  that  amount,  and 
sell  them  in  open  market,  as  commercial  paper?  Let  us  see.  Sec- 
tion 3342  is  unquestionably  a  limitation  upon  the  power  to  borrow 
money.  Its  very  language  is  that  of  mandatory  negation :  "No  in- 
corporated town  shall  have  the  power  to  borrow  money,  or  incur 
any  debt,"  unless  certain  conditions  precedent  are  complied  with. 
The  conditions  which  the  statute  prescribes,  the  statute  means  to 
be  performed.  There  can  be  no  legal  borrowing,  unless  the  stat- 
ute is  strictly  followed.  What  does  it  prescribe?  That  there  must 
be  first  a  petition  to  the  town  trustees,  which  shall  be  signed  by  the 
citizen  owners  of  at  least  five-eighths  of  the  taxable  property  of  the 
town,  whose  signatures  shall  be  verified  by  an  affidavit  to  the  peti- 
tion. The  prayer  of  the  petition  is  required  to  be  that  tlie  boartl 
of  trustees  shall  contract  such  debt  or  loan.  The  board  could  not 
depart,  in  its  action,  from  this  legally  required  prayer  of  the  petition 
without  transcending  its  authority,  and  acting  ultra  vires,  r.ut  the 
board  did  depart  from  the  prayer,  for  it  did  not  borrow  money  nor 
contract  a  loan  ;  but  it  ordained,  in  so  many  words,  that  the  town  is- 
sue bonds  for  negotiation  and  sale  at  not  less  than  94  cents  on  the 
dollar.     *     *     * 

It  is  admitted  that  the  power  to  borrow  money  or  to  incur  in- 
debtedness carries  with  it  the  power  to  issue  the  usual  evidences  of 
indebtedness  by  the  corporation  to  the  lender  or  other  credittir.  Such 
evidences  may  be  in  the  form  of  promissory  notes,  warrants,  and. 
perhaps,  most  generally,  in  that  of  a  bond.  I'.ut  there  is  a  marked 
legal  difiference  between  the  power  to  give  a  note  to  a  lender  for  the 
amount  of  money  borrowed,  or  to  a  creditor  for  the  amount  (hic. 
and  the  power  to  issue  for  .sale,  in  open  market,  a  bond,  as  a  com- 
mercial security,  with  immunity,  in  the  hands  of  a  bona  fide  h<»lder 
for  value,  from  equitable  defenses.  The  plaintiflf  in  error  contends 
that  there  is  no  legal  or  substantial  difference  between  the  two;  that 
the  issuing  anrl  disposal  of  bonds  in  market,  thottj^h  in  comninn  i)ar- 
lance,  and  sometimes  in  legislative  enartmrnt.  called  a  "sale."  is  not 
so  in  fact ;  and  that  the  so-called  purchaser  who  takes  the  bond  and 
advances  his  money  for  it  is  actually  a  lender,  as  much  so  as  a  per- 
son who  takes  a  bond  payable  to  him  in  his  own  name. 


314  DEBTS,  FUNDS,  EXPENSES    AND    ADMINISTRATION 

We  think  the  case  of  Police  Jury  v.  Britton,  15  Wall.  566,  21  L. 
Ed.  251,  is  directly  and  absolutely  conclusive  against  the  position  of 
the  plaintiff  in  error  on  this  point.  It  was  an  action  upon  coupons 
of  certain  bonds  issued  by  the  police  jury  of  Tensas  parish.  La.,  the 
validity  of  which  the  defendant  denied,  upon  the  ground  that  they 
were  issued  without  the  authority  of  any  law  of  that  state.  It  ap- 
peared that  the  police  jury  had  no  express  authority  to  issue  the 
bonds  in  question ;  and,  if  they  had  any  authority  of  the  kind,  it  must 
be  implied  from  the  general  powers  of  administration  with  which  the 
said  police  jury  was  invested.  The  question,  therefore,  directly  pre- 
sented in  that  case  was  precisely  the  question  directly  presented  in 
this  case,  viz.,  whether  the  trustees  or  representative  olftcers  of  a 
parish,  county,  or  other  local  jurisdiction,  invested  with  the  usual 
powers  of  administration,  in  specific  matters,  and  the  power  of  levy- 
ing taxes  to  defray  the  necessary  expenditures  of  the  jurisdiction, 
have  an  implied  authority  to  issue  negotiable  securities,  payable  in 
future,  of  such  a  character  as  to  be  unimpeachable  in  the  hands  of 
bona  fide  holders,  for  the  purpose  of  raising  money  or  funding  a  pre- 
vious indebtedness. 

The  opinion  of  the  court,  delivered  by  Mr.  Justice  Bradley,  clear- 
ly illustrated  the  fundamental  distinction  between  issuing  bonds  mere- 
ly as  evidence  of  a  debt  or  loan  and  issuing  bonds  for  negotiation  and 
sale  generally,  with  respect  to  the  powers  of  a  municipal  corporation. 
It  said :  "That  a  municipal  corporation  which  is  expressly  author- 
ized to  make  expenditures  for  certain  purposes  may,  unless  prohibit- 
ed by  law,  make  contracts  for  the  accomplishment  of  the  authorized 
purposes,  and  thereby  incur  indebtedness,  and  issue  proper  vouchers 
therefor,  is  not  disputed.  This  is  a  necessary  incident  to  the  ex- 
press power  granted.  But  such  contracts,  as  long  as  they  remain 
executory,  are  always  liable  to  any  equitable  considerations  that  may 
exist  or  arise  between  the  parties,  and  to  any  modification,  abate- 
ment, or  rescission,  in  whole  or  in  part,  that  may  be  just  and  proper 
in  consequence  of  illegalities,  or  disregard  or  betrayal  of  the  pub- 
lic interests.  Such  contracts  are  very  different  from  those  which  are 
in  controversy  in  this  case.  The  bonds  and  coupons  on  which  a  re- 
covery is  now  sought  are  commercial  instruments,  payable  at  a  fu- 
ture day,  and  transferable  from  hand  to  hand.  *  *  *  f  he  power 
to  issue  such  paper  has  been  the  means,  in  several  cases  which  have 
recently  been  brought  to  our  notice,  of  imposing  upon  counties  and 
other  local  jurisdictions  burdens  of  a  most  fraudulent  and  iniquitous 
character,  and  of  which  they  would  have  been  summarily  relieved 
had  not  the  obligations  been  such  as  to  protect  them  from  question 
in  the  hands  of  bona  fide  holders.  *  *  *  j|-  seems  to  us  to  be  a 
power  quite  distinct  from  that  of  incurring  indebtedness  for  improve- 
ments actually  authorized  and  undertaken,  the  justness  and  validity 
of  which  may  always  be  inquired  into.     It  is  a  power  which  ought 


MUNICIPAL    BONDS — POWER    TO    ISSUE  SlTt 

not  to  be  implied  from  the  mere  authority  to  make  such  improve- 
ments."    *     *     * 

The  same  doctrine  is  presented  most  forcibly  in  the  case  ot  Mavor 
V.  Rav,  19  Wall.  468,  22  L.  Ed.  16+.  In  Claiborne  Co.  v.  Brooks, 
111  U.  S.  400,  406,  4  Sup.  Ct.  489,  28  L.  Ed.  470,  it  was  held  that 
the  statutes  of  Tennessee,  which  conferred  upon  counties  in  that 
state  the  power  to  erect  a  court-house,  jail,  and  other  necessary  coun- 
ty buildings,  did  not  authorize  the  issue  of  commercial  paper  as  evi- 
dence of  or  security  for  a  debt  contracted  for  the  construction  of 
such  a  building.     *     *     * 

In  Hill  V.  Memphis,  134  U.  S.  198,  203,  10  Sup.  Ct.  562,  33  L.  Ed. 
887,  it  was  held  that  the  power  conferred  by  statute  on  municipal  cor- 
porations to  subscribe  for  stock  in  a  railway  corporation  did  not  in- 
clude the  power  to  create  a  debt  and  issue  negotiable  bonds  in  or- 
der to  pay  for  that  subscription.  In  delivering  the  opinion  of  the 
court,  Mr.  Justice  Field  said :  "Whilst  a  municipal  corporation,  au- 
thorized to  subscribe  for  the  stock  of  a  railroad  company,  or  to  incur 
any  other  obligation,  may  give  written  evidence  of  such  subscrip- 
tion or  obligation,  it  is  not  thereby  empowered  to  issue  negotiable 
paper  for  the  amount  of  indebtedness  incurred  by  the  subscription  or 
obligation.  Such  papers  in  the  hands  of  innocent  parties  for  value 
cannot  be  enforced  without  reference  to  any  defense  on  the  part  of  the 
corporation,  whether  existing  at  the  time  or  arising  subsequently. 
Municipal  corporations  are  established  for  purposes  of  local  govern- 
ment, and,  in  the  absence  of  specific  delegation  of  power,  cannot  en- 
gage in  any  undertakings  not  directed  immediately  to  the  accomplish- 
ment of  those  purposes.  Private  corporations  created  for  private 
purposes  may  contract  debts  in  connection  with  their  business,  and 
issue  evidence  of  them  in  such  form  as  may  best  suit  their  cojuen- 
ience.  The  inability  of  municipal  corporations  to  issue  negotiable 
paper  for  their  indebtedness,  however  incurred,  unless  authority  Un 
that  purpose  is  expressly  given  or  necessarily  imi)lied  for  the  exe- 
cution of  other  express  powers,  has  been  afllrmcd  in  repeated  deci- 
sions of  this  court."  All  of  the  cases  we  have  cited  above  wore  re- 
ferred to  in  the  oi)inio!i  in  that  case  as  sustaining  the  doctrine  tliere- 

in  laid  down.  . 

The  logical  result  of  the  doctrines  announced  in  the  abovc-citctl 
cases,  in  our  opinion,  clearly  shows  that  the  bonds  sue!  on  in  th.s 
case  are  invalid.  It  does  not  follow  that,  because  the  town  of  Mon- 
ticello  had  the  right  to  contract  a  loan,  it  had  therefore  the  right  to 
issue  negotiable  bonds  and  put  them  on  the  market  an  evidenced  of 
such  loan.  To  borrow  money,  and  to  give  a  I>ond  or  ()bligalion 
therefor  which  may  circulate  in  the  market  as  a  n« 

freed  from  any  ef|uities  that  mav  be  set  up  by  the  ,  •-■. 

in  their  nature  and  in  their  legal  effect,  essentially  nt  transac- 

tions     In  the  present  case  all  that  can  be  conten<lcd  for  is  that  the 
town  had  the  power  to  contract  a  loan  under  certain  specified  rcMnc 


316  DEBTS,  FUNDS,  EXPENSES    AND    ADMINISTUATION 

tions  and  limitations.  Nowhere  in  the  statute  is  there  any  express 
power  given  to  issue  negotiable  bonds  as  evidence  of  such  loan. 
Nor  can  such  power  be  implied,  because  the  existence  of  it  is  not 
necessary  to  carry  out  any  of  the  purposes  of  the  municipality.  It 
is  true  that  there  is  a  considerable  number  of  cases,  many  of  which 
are  cited  in  the  brief  of  counsel  for  plaintiff  in  error  which  hold  a 
contrary  doctrine.  But  the  view  taken  by  this  court  in  the  cases 
above  cited  and  others  seems  to  us  more  in  keeping  with  the  well 
recognized  and  settled  principles  of  the  law  of  municipal  corpora- 
tions.    *     *     * 

In  the  case  before  us  the  power  in  question  is  not,  in  our  opinion, 
indispensable  to  the  exercise  of  the  express  or  implied  powers  con- 
ferred upon  the  town  by  law.  The  utmost  that  can  be  said  is  that  it 
was  deemed  more  convenient  or  expedient  to  issue  the  bonds  in  that 
form  than  in  the  mode  prescribed. 

We  think  that  the  fact  that  the  legislature  of  the  state  of  Indiana  by 
the  acts  of  1867,  1869,  and  1873,  above  referred  to,  expressly  author- 
ized towns  in  the  same  class  as  the  defendant  in  error  to  issue  bonds 
for  certain  specified  purposes,  under  proper  safeguards  and  limita- 
tions, is  indicative  of  the  legislative  understanding  that,  without 
some  such  express  statutory  provisions,  no  power  existed  in  the 
town  to  issue  negotiable  bonds;  and  sell  them  in  open  market. 

The  same  may  be  said  of  the  act  of  the  legislature  of  that  state 
which  took  effect  August  24,  1879,  expressly  conferring  upon  the 
towns  in  that  state  power  to  fund  their  indebtedness  by  issuing  bonds 
and  negotiating  them  for  that  purpose,  under  certain  specified  terms, 
restrictions,   and   limitations. 

We  are  not  unmindful  that  in  several  of  the  cases  in  the  supreme 
court  of  Indiana,  cited  by  counsel  for  plaintiff  in  error,  there  may 
be  found  abstract  propositions  susceptible  of  a  construction  in  sup- 
port of  the  position  he  seeks  to  maintain ;  but  we  think  this  case  is 
distinguishable  from  them  all  in  essential  features,  which  except  it 
from  those  general  propositions,  and  leave  the  conclusion  which  we 
have  reached  in  harmony  with  them. 

It  is  contended  that  the  bonds  sued  on  were  issued  practically  for 
the  purpose  of  taking  the  place  of  the  prior  bonds,  outstanding  and 
unpaid,  which  represented  a  debt  for  the  erection  of  a  school  build- 
ing, and  were  therefore  authorized  by  section  4488.  This  position 
is  untenable.  It  cannot  be  reasonably  contended  that  the  bonds  were 
issued  under  any  of  the  sections  relating  to  the  negotiation  and  sale 
of  bonds  for  school  purposes.  It  is  not  even  pretended  that  they 
were  issued  in  accordance  with  the  clearly-defined  conditions  and  re- 
strictions imposed  by  those  sections. 

Nor  do  we  think  the  fact  that  the  town  actually  received  a  portion 
of  the  money  arising  from  the  sale  of  the  so-called  bonds  (or,  in 
legal  contemplation,  perhaps  all  of  it,  as  it  was  paid  to  the  agent 
of  the  town)  estops  the  corporation  from  pleading  a  want  of  author- 


MUNICIPAL   BONDS— POWER   TO    ISSUE  317 

ity  in  the  municipality  to  issue  the  instruments  sued  on.  The  origi- 
nal act  of  issuing  the  bonds  for  sale  was  not  only  unauthorized  by 
law,  but  in  disregard  of  its  requirements,  and  no  subsequent  act  of 
the  town  trustees  could  make  it  valid.  Whether  it  could  be  a  cir- 
cumstance in  favor  of  the  equitable  right  of  the  holders  of  the  bonds 
to  recover  from  the  municipality  the  money  which  they  represent  is  a 
question  not  here  for  consideration. 

The  suit  was  upon  the  bonds  themselves,  and  for  the  reasons  above 
stated  we  hold  that  there  can  be  no  recovery  upon  them.  Judgment 
affirmed. 


DODGE  V.  CITY  OF  MEMPHIS. 
(Circuit  Court  of  the  United  States,  E.  D.  Missouri,  1S92.    51  Fed.  105.) 

At  Law.  Action  by  James  B.  Dodge  against  the  city  of  Mem- 
phis, Mo.,  on  certain  municipal  bonds.     Heard  on  demurrer  to  plea. 

Thayer,  District  Judge.  The  petition  contains  three  counts. 
The  first  count  alleges  that  in  February.  1871.  the  town  of  Mem- 
phis, Scotland  county,  Mo.,  subscribed  for  $30,000  of  the  capital 
stock  of  the  Missouri,  Iowa  &  Nebraska  Railway  Company,  pursu- 
ant to  power  conferred  by  an  act  of  the  general  assembly  of  Mis- 
souri, approved  February  9,  1857,  to  incorporate  the  Alexandria  & 
Bloomfield  Railroad  Company ;  that  such  subscription  was  au- 
thorized by  a  majority  vote  of  the  people  of  the  town  of  Memphis, 
at  an  election  held  for  that  purpose;  that  as  an  evidence  of  such  sub- 
scription coupon  bonds  to  the  amount  of  $30,000  were  issued  and  de- 
livered by  the  town,  which  were  to  run  for  20  ycar.s.  and  which 
matured  on  March  1,  1891.  It  is  further  averred  that  the  town  of 
Memphis  received  the  stock  in  question,  but  subsequently  soM  it. 
and  that  for  some  years  it  paid  the  interest  on  its  bonds;  tli.it  it 
also  appointed  an  agent  to  represent  the  town  at  mecting.s  of  the 
stockholders  of  the  railway  company.  The  petition  then  sets  out  one 
of  the  bonds  in  ha;c  verba,  which  apjiears  to  be  a  negotial>lc  bond, 
in  the  ordinary  form,  such  as  are  usually  issued  by  miuiicipal  cor- 
porations; and  avers  that  the  plaintiff  is  the  holder  of  22  of  such 
bonds,  (giving  their  numbers,)  and  demands  judgment  for  the 
amount  due  on  the  subscription  as  shown  by  the  bonds,  together 
with  interest  from  March   1,  1891. 

The  theory  of  the  plaintiff's  cotuisel  seems  to  be  that  ilw  In-i  i-uiu 
of  the  petition  is  a  suit  on  the  bonds,  treating  them  as  ii'  rm.  .itiablc 
instruments;  that  the  bond  evidences  the  contract  of  ption; 

and  that  the  plaintiff  is  entitled  to  sue  on  the  same,  ignoring  their 
negotiable  quality  precisely  as  if  they  were  an  ordinary  nonnrg.)lia- 
ble  contract,  which  the  town  was  authorized  to  make  and  1  '  Ir. 
That  the  town  of  Memphis  had  no  authority  to  i--  '"•  >  ■  ..  .blc 
bonds  in  payment   for  the  .stock   sub-^cription  i»  coi  Hill  v. 


318  DEBTS,  FUNDS,  EXPENSES    AND    ADMINISTRATION 

Memphis,  134  U.  S.  198,  10  Sup.  Ct.  562,  33  L.  Ed.  887.  To  the 
first  count  of  the  petition  the  defendant  interposes  several  different 
pleas,  including:  a  plea  of  the  statute  of  Hmitations,  and  to  the  latter 
plea  plaintiff   demurs. 

It  may  be  conceded  that  if  the  first  count  of  the  petition  is  prop- 
erly founded  on  the  bonds,  calling  them  either  bonds  or  the  contract 
of  subscription,  then  the  statute  of  limitations  is  not  well  pleaded, 
because  such  bonds  did  not  mature  until  March  1,  1891,  and  neither 
the  5,  10,  nor  20  years'  bar  of  the  statute  is  applicable.  But,  on  the 
other  hand,  if  a  suit  cannot  be  maintained  on  the  bonds  according  to 
plaintiff's  contention,  then  the  first  count  of  his  declaration  is  bad, 
and  the  demurrer  to  the  plea  is  not  tenable  for  that  reason.  I  have 
looked  through  all  of  the  federal  cases  cited  by  plaintiff's  attorney 
in  support  of  his  contention  that  where  negotiable  bonds  are  issued 
by  a  municipal  corporation  without  authority  of  law,  and  are  void 
as  negotiable  instruments,  a  suit  may  nevertheless  be  maintained  bn 
such  bonds,  under  some  circumstances,  as  nonnegotiable  instruments, 
and  I  have  been  unable  to  find  a  single  paragraph  in  any  of  the  de- 
cisions that  fairly  supports  such  a  doctrine.  The  authorities  show 
that,  if  negotiable  paper  is  uttered  by  a  municipal  corporation  with- 
out authority  of  law,  it  is  void,  and  a  .suit  cannot  be  maintained 
thereon  for  any  purpose.  Mayor  v.  Ray,  19  Wall.  468,  22  L.  Ed. 
164;  Hitchcock  v.  Galveston,  96  U.  S.  350,  24  L.  Ed.  659;  Little  Rock 
V.  Merchants'  Nat.  Bank,  98  U.  S.  308,  25  L.  Ed.  108 ;  Wall  v.  Mon- 
roe Co.,  103  U.  S.  78,  26  L.  Ed.  430 ;  Hill  v.  City  of  Memphis,  134 
U.  S.  198,  10  Sup.  Ct.  562,  33  L.  Ed.  887 ;  Merrill  v.  Monticello,  138 
U.  S.  673,  11  Sup.  Ct.  441,  34  L.  Ed.  1069. 

They  show,  no  doubt,  that  when  a  municipal  corporation  sells 
bonds  which  are  void,  and  receives  the  money,  it  may  be  compelled 
to  restore  it  in  an  action  for  money  had  and  received.  So  when  a 
municipal  corporation  is  authorized  to  purchase  property  for  any 
purpose,  or  to  contract  for  the  erection  of  public  buildings,  or  for 
any  other  public  work,  and  it  enters  into  such  authorized  contract, 
but  pays  for  the  property  acquired  or  work  done  in  negotiable  se- 
curities which  it  has  no  express  or  implied  power  to  issue,  it  may  be 
compelled  to  pay  for  that  which  it  has  received  in  a  suit  brought  for 
that  purpose.  In  no  case,  however,  does  it  appear  that  a  suit  has 
been  sustained  on  a  void  bond,  treating  it  as  nonnegotiable,  and  as 
something  entirely  different  from  what  the  parties  intended  it  should 
be.  As  the  court  understands  the  cases,  suit  must  be  brought  on  the 
implied  promise  which  the  law  raises  to  pay  the  value  of  that  which 
the  municipality  has  received,  but  has  in  fact  not  paid  for,  because 
the  securities  issued  in  pretended  payment  were  void.  The  demur- 
rer to  the  plea  must  accordingly  be  overruled,  because  the  first  count 
is  bad  if  it  is  regarded  as  stating  a  cause  of  action  on  the  bonds. 
If  it  is  treated  as  a  suit  to  recover  the  value  of  certain  stock  which 


EIGHTS    OF   CREDITORS  3l0 

the  town  lawfully  subscribed   and  acquired,  and  has   not   paid  for, 
then  the  plea  of  the  statute  may  be  a  good  plea. 

At  all  events,  it  does  not  affirmatively  appear  that  the  plea  in  that 
event  is  untenable.     The  demurrer  is  overruled. 


IV.  Rights  of  Creditors  ' 


SHAPLEIGH  v.   CITY  OF   SAN  ANGELO. 

(Supreme  Court  of  the  Uuited  States,  1807.     167  U.  S.  646,  17  Sup.  Ct.  O'u. 

42  L.  Ed.  310.) 

In  error  to  the  circuit  court  of  the  United  States  for  the  Western 
District  of  Texas. 

Mr.  Justice  Shiras.^  In  January,  18S9.  the  city  of  San  Angelo 
was  existing  and  acting  as  an  organized  municipal  corporation,  with 
a  mayor,  a  board  of  aldermen,  and  other  functionaries.  In  pursuance 
of  an  ordinance  of  the  city  council,  in  May,  188*).  there  were  issued 
the  bonds  in  question  in  this  case.  It  was  not  denied  that  the  proceed- 
ings were  regular  in  form,  that  the  bonds  were  duly  executed  and 
registered  as  required  by  law,  that  the  proceeds  of  their  sale  were 
properly  applied  to  improving  the  streets  and  public  highways  of  the 
city,  and  that  the  plaintiff  was  a  bona  fide  holder  fur  value. 

As  things  then  stood,  it  is  plain  that  the  city  could  not  have  set  up. 
to  defeat  its  obligations,  any  supposed  irregularity  or  illegality  in  its 
organization.  The  state,  being  the  creator  of  municipal  corporations, 
is  the  proper  party  to  impeach  the  validity  of  llieir  creation.  If  the 
state  acquiesces  in  the  validity  of  a  municipal  corporation,  its  corpo- 
rate existence  cannot  be  collaterally  attacked. 

This  is  the  general  rule,  and  it  is  recogni/cd  in  Texas:  "If  a  mu- 
nicipality has  been  illegally  constituted,  the  state  alone  can  take  ad- 
vantage of  the  fact  in  a  proper  proceeding  instituted  for  the  purpose 
of  testing  the  validity  of  its  charter."  Graham  v.  City  of  Greenville, 
67  Tex.  62.  2  S.  W.  742. 

Uul  in   1890,  at  the  fall  term  of  the  district  court  of  Tom  Green 
county,  an  information  was  filed  by  the  county  atlt)rncy  nf^ainst  named 
persons,  who  were  exercising  and  performing  the  duties,  pri'. 
and  functions  of  a  mayor,  and  city  council  of  the  t'  San 

claiming  the  same  to  be  a  city  duly  and  legally  ini...,.  ,,,tcd  !••• 
laws  of  the  state,  anrl  alleging  that  said  city  was  not  legally  i: 
ed,  and  that  said  named  persons  were  unlawfully  exercising  saiil  func- 

1  Ff)r  (llscussldii  "f  iirliK'IplfH,  wc  Coolpy,  Mini.  Corp.  |   1.'12. 

«  Tiirt  nf  tlic  <>iiliil<>n   Is  oinlttcd. 


320  DEBTS,  FUNDS,  EXPENSES    AND    ADMINISTRATION 

tions.  Such  proceedings  were  had  that  on  December  15,  1891,  the 
said  district  court  entered  a  decree  ousting  the  said  persons  from  their 
said  offices,  and  adjudging  that  the  incorporation  of  said  city  of  San 
Angelo  be,  and  the  same  was  thereby,  abohshed,  and  declared  to  be 
null  and  void.  The  record  does  not  distinctly  disclose  the  ground  upon 
which  the  court  proceeded  in  disincorporating  said  city,  but  enough 
appears  to  justify  the  inference  that  the  incorporation  included  within 
its  limits  unimproved  pasture  lands,  outside  of  the  territory  actually 
inhabited,  and  that  the  incorporation  was  declared  invalid  for  that 
reason. 

Subsequently,  on  February  10,  1892,  the  city  of  San  Angelo  was 
again  incorporated,  excluding  the  unimproved  lands,  but  including  all 
the  improved  part  of  the  prior  incorporation,  and  in  which  existed 
the  streets  and  highways  in  the  construction  of  which  the  proceeds  of 
the  said  bonds  had  been  expended. 

What  was  the  legal  effect  of  the  disincorporation  of  the  city  of 
San  Angelo  and  of  its  subsequent  reincorporation  as  respects  the 
bonds  in  suit?  Did  the  decree  of  the  district  court  of  Tom  Green 
county,  abolishing  the  city  of  San  Angelo  as  incorporated  in  1889, 
operate  to  render  its  incorporation  void  ab  initio,  and  to  nullify  all  its 
debts  and  obligations  created  while  its  validity  was  unchallenged  ?  Or 
can  it  be  held,  consistently  with  legal  principles,  that  the  abolition  of 
the  city  government  as  at  first  organized,  because  of  some  disregard 
of  law,  and  its  reconstruction  so  as  to  include  within  its  limits  the 
public  improvements  for  which  bonds  had  been  issued  during  the  first 
organization,  devolved  upon  the  city  so  reorganized  the  obligations 
that  would  have  attached  to  the  original  city  if  the  state  had  continued 
to  acquiesce  in  the  validity  of  its  incorporation? 

Such  a  question  was  presented  in  Broughton  v.  Pensacola,  93  U. 
S.  266,  23  L.  Ed.  896,  and  was  answered  in  the  following  language : 

"Although  a  municipal  corporation,  as  far  as  it  is  invested  with 
subordinate  legislative  powers  for  local  purposes,  is  a  mere  instru- 
mentality of  the  state  for  the  convenient  administration  of  govern- 
ment, yet,  when  authorized  to  take  stock  in  a  railroad  company,  and 
issue  its  obligations  in  payment  of  the  stock,  it  is  to  that  extent  to  be 
deemed  a  private  corporation,  and  its  obligations  are  secured  by  all 
the  guaranties  which  protect  the  engagements  of  private  individuals. 
The  inhibition  of  the  constitution,  which  preserves  against  the  inter- 
ference  of  a  state  the  sacredness  of  contracts,  applies  to  the  liabilities 
of  municipal  corporations  created  by  its  permission ;  and,  although  the 
repeal  or  modification  of  the  charter  of  a  corporation  of  that  kind  is 
not  within  the  inhibition,  yet  it  will  not  be  admitted,  where  its  legis- 
lation is  susceptible  of  another  construction,  that  the  state  has  in  this 
way  sanctioned  an  evasion  of  or  escape  from  liabilities  the  creation  of 
which  it  authorized.  When,  therefore,  a  new  form  is  given  to  an  old 
municipal  corporation,  or  such  a  corporation  is  reorganized  under  a 
new  charter,  taking,  in  its  new  organization,  the  place  of  the  old  one, 


RIGHTS   OF   CREDITORS  321 

embracing  substantially  the  same  corporators  and  the  same  terriiorv. 
it  will  be  presumed  that  the  legislature  intended  a  continued  existence 
of  the  same  corporation,  although  different  powers  are  presumed 
under  the  new  charter,  and  different  officers  administer  its  affairs; 
and,  in  the  absence  of  express  provision  for  their  payment  otherwise, 
it  will  also  be  presumed  in  such  case  that  the  legislature  intended  that 
the  liabilities  as  well  as  the  right  of  property  of  the  corporation  in 
its  old  form  should  accompany  the  corporation  in  its  reorganization. 
*  *  *  The  principle  which  applies  to  the  state  would  seem  to  be 
applicable  to  cases  of  this  kind.  Obligations  contracted  by  its  agents 
continue  against  the  state,  whatever  changes  may  take  place  in  its 
constitution  of  government.  'The  new  government,'  says  Wheaton, 
'succeeds  to  the  fiscal  rights,  and  is  bound  to  fulfill  the  fiscal  obliga- 
tions, of  the  former  government.  It  becomes  entitled  to  the  public 
domain  and  other  property  of  the  state,  and  is  bound  to  pay  its  debts 
previously  contracted.' 

"So  a  change  in  the  charter  of  a  municipal  corporation,  in  whole  or 
part,  by  an  amendment  of  its  provisions,  or  the  substitution  of  a  new 
charter  in  place  of  the  old  one,  should  not  be  deemed,  in  the  ab- 
sence of  express  legislative  declaration  otherwise,  to  affect  the  iden- 
tity of  the  corporation,  or  to  relieve  it  from  its  previous  liabilities." 
Mt.  Pleasant  v.  Beckwith,  100  U.  S.  520,  25  L.  Ed.  <)')9. 

In  ^lobile  V.  Watson,  116  U.  S.  289,  6  Sup.  Ct.  398,  29  L.  Kd.  620. 
it  was  held  that  when  a  municipal  corporation  with  fixed  boundaries  is 
dissolved  by  law,  and  a  new  corporation  is  created  by  the  legislature 
for  the  same  general  purposes,  but  with  new  boundaries,  embracing 
less  territory,  but  containing  substantially  the  same  population,  the 
great  mass  of  the  taxable  property,  and  the  corporate  property  of  the 
old  corporation  which  passes  without  consideration  and  for  the  same 
uses,  the  debts  of  the  old  corporation  fall  upon  tiie  new  as  its  legal 
successor;  and  that  powers  of  taxation  to  pay  them,  which  it  had  at 
the  time  of  their  creation,  and  which  entered  into  the  contracts,  also 
survive,  and  i)ass  into  the  new  corporation. 

There  are  other  cases  declaring  the  same  views,  but  which  it  is  need- 
less to  cite.  The  conclusions  reached  by  this  court  may  be  thus  ex- 
pressed:   The  state's  plenary  power  over  its  mtmiripal  corporations  to 

change  their  organization,  to  modify  their  method  of  int« '    'Mvern- 

mcnt,  or  to  abolish  them  altogether,  is  not  restricted  by  ■  is  en- 

tered into  by  the  municipality  with  its  creditors  or  with  private  pai 
ties.  An  absolute  repeal  of  a  numicii)al  charter  is,  therefore,  effectual 
so  far  as  it  abolishes  the  old  corporate  organization;  but  when  \Uv 
same,  or  substantially  the  same,  inhabitants  arc  erected  into  a  new 
corporation,  whether  with  extended  or  restricted  trrrifMrial  limitji. 
such  new  corporation  is  treated  as  in   law  the  9ucc«  f   the  old 

one,  entitled  to  its  property  rights,  and  subject  to  its  liabilities.     1  Dill. 
Mun.  Corp.  (4th  Kd.)  §  172. 
CooLEY  Cases  Mun.C— lil 


322  DEBTS,  FUNDS,  EXPENSES    AND    ADMINISTRATION 

This  view  of  the  law  has  been  accepted  and  followed  by  the  supreme 
court  of  the  state  of  Texas. 

The  city  of  Corpus  Christi,  organized  under  the  laws  of  the  state 
of  Texas,  entered  into  a  contract  with  Morris  &  Cummings,  a  private 
firm  or  partnership,  whereby  the  latter  were  to  make  certain  improve- 
ments and  works  in  the  Bay  of  Corpus  Christi,  and  the  city  was  to 
issue  bonds  in  payment,  with  authority  to  the  holders  to  collect  tolls 
on  vessels  passing  through  the  bay  until  the  bonds  were  paid.  The 
contract  was  so  far  executed  that  the  improvements  were  made,  and 
the  bonds  issued  and  delivered.  Subsequently,  by  an  act  of  the  legis- 
lature of  the  state,  the  act  incorporating  the  city  of  Corpus  Christi,  and 
all  other  acts  relating  to  the  incorporation  and  franchises  of  the  same, 
were  repealed.  It  was  contended  that  this  repeal  operated  to  ex- 
tinguish all  right  on  the  part  of  Morris  &  Cummings  to  collect  tolls 
for  the  use  by  vessels  of  the  channel  they  had  constructed;  but  the 
court  held  that,  while  the  power  of  the  legislature  to  alter  or  repeal 
an  act  chartering  a  municipal  corporation  is  undoubted,  yet  that  this 
power  cannot  be  exercised  to  the  injury  of  creditors  of  the  corpora- 
tion or  of  persons  holding  contracts  with  it,  especially  when  fully 
performed  on  their  part,  so  as  to  entitle  them  to  the  compensation 
provided  for  in  the  contract, — citing  Mt.  Pleasant  v.  Beckwith,  100 
U.  S.  514,  25  L.  Ed.  699,  that  the  repealing  act  must  be  considered  in 
reference  to  the  provision  of  the  constitution  of  the  United  States  for- 
bidding the  states  to  pass  laws  impairing  the  obligation  of  a  contract, 
and  also  to  a  similar  provision  in  the  state  constitution ;  that  the  same 
obligation  to  perform  its  contracts  rests  upon  a  corporation  as  upon 
a  natural  person;  that  while  the  legislature  may  deprive  the  corpo- 
ration of  its  charterial  rights,  and  forbid  its  exercising  any  of  the 
governmental  powers,  it  must  not  be  presumed  that  it  intended  also 
to  absolve  it  from  its  liabilities  to  creditors,  or  to  contractors  whose 
rights  to  compensation  have  become  vested ;  and  that,  accordingly,  the 
act  of  the  legislature  repealing  the  charter  of  the  city  of  Corpus 
Christi  cannot  be  construed  to  interfere  with  the  right  of  Morris  & 
Cummings  to  collect  tolls,  without  violating  both  the  constitution  of 
the  United  States  and  of  Texas.    Morris  v.  State,  62  Tex.  730. 

This  decision  was  published  in  1884,  before  the  transactions  in  the 
present  case. 

The  conclusion  which  is  derivable  from  the  authorities  cited,  and 
from  the  principles  therein  established,  is  that  the  disincorpora- 
tion  by  legal  proceedings  of  the  city  of  San  Angelo  did  not  avoid 
legally  subsisting  contracts,  and  that  upon  the  reincorporation  of  the 
same  inhabitants,  and  of  a  territory  inclusive  of  the  improvements 
made  under  such  contracts,  the  obligation  of  the  old  devolved  upor 
the  new  corporation. 

The  doctrine  successfully  invoked  in  the  court  below  by  the  de- 
fendant, that  where  a  municipal  incorporation  is  wholly  void  ab  initio, 
as  being  created  without  warrant  of  law,  it  could  create  no  debts  and 


EIGHTS   OF   CREDITORS  3-3 

could  incur  no  liabilities,  does  not,  in  our  opinion,  apply  to  the  case 
of  an  irregularly  organized  corporation,  which  had  obtained,  by  com- 
pliance with  a  general  law  authorizing  the  formation  of  municipal 
corporations,  an  organization  valid  as  against  everybody  except  the 
state  acting  by  direct  proceedings.  Such  an  organization  is  merelv 
voidable,  and,  if  the  state  refrains  from  acting  until  after  debts  are 
created,  the  obligations  are  not  destroyed  by  a  dissolution  of  the  cor- 
poration, but  it  will  be  presumed  that  the  state  intended  that  they 
should  be  devolved  upon  the  new  corporation  which  succeeded,  by 
operation  of  law,  to  the  property  and  improvements  of  its  predecessor. 

We  come  now  to  consider  the  legal  effect  of  the  act  entitled  "An 
act  to  amend  article  541,  chapter  11,  title  17,  of  the  Revised  Civil 
Statutes  of  the  State  of  Texas,"  approved  April  13,  1891.  That  act 
was  in  the   follovv'ing  terms : 

"Section  1.  When  any  corporation  is  abolished,  as  provided  in 
the  preceding  article,  or  if  any  de  facto  corporation  shall  be  declared 
void  by  any  court  of  competent  jurisdiction,  or  if  the  same  shall  cease 
to  operate  and  exercise  the  functions  of  such  de  facto  corporation,  all 
the  property  belonging  thereto  shall  be  turned  over  to  the  county 
treasurer  of  the  county,  and  the  commissioners  court  of  the  county 
shall  provide  for  the  sale  and  disposition  of  the  same  and  for  the  set- 
tlement of  the  debts  due  by  the  corporation,  and  for  this  purpose  shall 
have  the  power  to  levy  and  collect  a  tax  from  the  inhabitants  of  said 
town  or  village  in  the  same  manner  as  the  said  corporation  would  be 
entitled  to  under  the  provisions  of  this  chapter :  provided,  that  when 
any  town  or  city  shall  reincorporate  under  chapters  1  to  11  of  title  17 
of  the  Revised  Statutes  upon  a  majority  of  the  legal  voters  tax-jiaying 
property  holders  of  said  town  or  city,  all  property,  real  and  personal, 
of  the  old  or  de  facto  corporation,  shall  be  vested  in  the  new  one: 
and  provided  further,  that  the  new  corporation  shall  assume  all  the 
legal  indebtedness,  contracts  and  obligations  of  the  old  corporalinn : 
provided,  where  cities  and  towns  have  reincorporated  under  chapters 
1  to  11  of  title  17  of  the  Revised  Civil  Statutes,  prior  to  the  adoption 
of  this  act,  upon  a  majority  vote  of  the  tax-paying  proi^crly  owners 
of  said  city  or  town,  all  property,  real  and  per.sonal,  of  the  old  or  de 
facto  corporation  shall  be  vested  in  the  new  one:  and  jjiovided  fur- 
ther, that  the  new  cor])orati«)n  shall  assume  all  the  legal  indebtedness, 
contracts  aiul  obligations  of  the  old  corporation. 

"Sec.  2.  Ill  all  cases  where  the  commissioners  court  shall  be  vested 
with  the  authority  conferred  on  them  by  this  act,  it  shall  be  the  duty 
of  such  court  to  appoint  a  suitable  persfin  to  |)crf()rin  the  duly  of 
tax  collector,  whose  duty  it  shall  be  to  collect  the  tax  within  the  terri- 
tory comijrised  in  the  flissolvefl  corpf)ratinii,  until  such  legal  indebteil- 
ness  of  such  corporation  has  been  paid  off  or  until  such  city  or  town 
has  been  reincorporated,  and  shall  fix  his  bond  in  sufficient  penalties 
to  protect  any  fund  collected:    provided,  that  s\ich  appointee  may  be 


324  DEBTS,  FUNDS,  EXPENSES    AND    ADMINISTRATION 

removed  at  any  time  for  carelessness  or  insufficiency  or  other  good 
cause." 

Gen.  Laws  Tex.  1891,  c.  77,  p.  95. 

The  provisions  of  this  act  might  be  reasonably  interpreted  as  con- 
sistent with  the  principles  heretofore  stated,  and  as  providing  a  meth- 
od of  enforcing  the  rights  of  creditors.  But  it  appears  that  the  su- 
preme court  of  Texas  has  construed  the  act  as  requiring  a  vote  of  the 
taxpaying  voters  in  favor  of  assuming  the  debt  before  the  new  incorpo- 
ration can  be  held  for  it.  City  of  Quanah  v.  White,  88  Tex.  14,  28 
S.  W.  1065. 

If  this,  indeed,  be  so, — and  it  is  difficult  to  reconcile  such  a  view 
with  those  previously  expressed  by  that  court, — then  it  would  fol- 
low, as  we  think,  that  said  act,  so  construed,  must  be  regarded,  as 
respects  prior  cases,  as  an  act  impairing  the  obligations  of  existing 
contracts.  If  the  law,  before  the  passage  of  the  act  of  1891,  was 
that  by  a  voluntary  reincorporation  and  a  taking  over  of  the  property 
rights  of  the  old  corporation  the  existing  obligations  devolved  upon 
the  new  corporation,  it  would  plainly  not  be  a  legitimate  exercise  of 
legislative  power,  as  affecting  such  prior  obligations,  to  substitute  an 
obligation  contingent  upon  a  vote  of  the  taxpayers. 

When  the  bonds  in  question  were  issued  and  became  the  property  of 
the  plaintiff,  he  was  entitled  not  merely  to  the  contract  of  payment 
expressed  in  the  bonds,  but  to  the  remedies  implied  by  existing  law. 
Bronson  v.  Kinzie,  1  How.  311,  11  L.  Ed.  143;  Seibert  v.  Lewis,  122 
U.  S.  284,  7  Sup.  Ct.  1190,  30  L.  Ed.  1161 ;  Barnitz  v.  Beverly,  163  U. 
S.  118,  16  Sup.  Ct.  1042,  41  L.  Ed.  93.     *    *    * 

When  we  hold  that  the  new  corporation,  under  the  facts  disclosed 
by  this  record,  is  subject  to  the  obligations  of  the  preceding  corpora- 
tion, we  mean  subject  to  them  as  existing  legal  obligations,  in  manner 
and  form  as  they  would  have  been  enforceable  had  there  been  no 
change  of  organization. 

The  judgment  of  the  circuit  court  is  reversed,  and  the  cause  is  re- 
manded for  further  proceedings,  not  inconsistent  with  this  opinion. 


TAXATION  325 


TAXATION 
I.  Source  of  Power  * 


STATE  V.  CITY   OF  DES   MOINES. 

(Supreme  Court  of  Iowa,  1S97.     103  Iowa,  76,  72  N.  W.  039,  39  L.  R.  A.  2S0, 

64  Am.   St.  Rep.  157.) 

Action  for  mandamus  to  compel  the  city  council  of  the  city  of  Des 
Moines  to  levy  a  tax  for  the  purpose  of  creating  a  sinking  fund  to 
build  a  library  building  in  said  city,  and  to  compel  said  city  council  to 
levy  a  tax  for  the  maintenance  of  a  library.  Jury  waived,  trial  to  the 
court,  and  judgment  for  defendants  for  costs.     Plaintiff  appeals. 

KixxE,  C.  J.-  1.  The  conceded  facts  in  this  case  are  as  follows: 
The  city  of  Des  Moines,  a  city  of  the  first  class,  in  1882,  by  a  vote 
of  its  electors,  accepted  the  provisions  of  the  statute  of  this  state  re- 
lating to  the  establishment  and  maintenance  of  free  public  libraries, 
and  had,  in  the  exercise  of  the  powers  conferred  upon  it,  established 
and  was  maintaining  such  a  library.  In  pursuance  of  law  a  board  of 
library  trustees  had  been  appointed,  and  was  exercising  the  powers 
and  duties  imposed  upon  it.  On  July  31,  1896,  said  board  of  trustees 
did  fix  and  determine  a  rate  of  taxation  of  one  mill  on  the  dollar  of 
the  taxable  valuation  of  the  property  in  said  city  for  the  purpose  of 
maintaining  the  public  library,  and  at  the  same  time  did  fix  and  deter- 
mine a  rate  of  taxation  of  three  mills  on  the  dullar  for  the  purpose  of 
creating  a  sinking  fund  for  the  purchase  of  a  lot  and  the  erection  of  a 
library  building,  and  did  cause  said  amounts  so  fixed  and  determined 
to  be  certified  to  the  city  council  of  said  city.  Said  city  council  re- 
fused to  levy  and  certify  to  the  county  auditor  said  amoinits  so  cer- 
tified to  them  by  said  board  of  library  trustees,  but  did  levy  and  cer- 
tify one-half  a  mill  tax  for  the  purpose  of  the  maintenance  of  the 
library.  Thereupon  this  action  was  brought  to  obtain  a  writ  of  m.in- 
damus  compclHng  the  city  council  to  levy  and  certify  the  rates  of 
taxes  fixed  and  fletcrmined  by  the  board  of  library  trustees. 

As  is  said  by  counsel  for  appellants:  "The  ultimate  (luestion  to  be 
determined  is  whether  or  not  the  city  council  in  cities  of  the  first  class 
accepting  the  provisions  of  the  statute  relating  to  the  eslablisjiinenl 
and  maintenance  of  free  public  libraries,  and  maintaining  such  library, 
is  bound  and  required  to  levy  and  certify  the  anioiuit  of  taxes  or  the 
rate  of  taxation  fixed  and  determined  by  the  board  of  library  trustees 
of  said  city." 

1  For  fllsnission  of  prlnclpIoH,  Hee  Cooloy.  Mun.  CVirp.  {  137. 

2  Pnrt  f)f  the  opinion  Jh  omitted. 


326  TAXATION 

2.  On  the  one  hand  it  is  contended  that  the  statute  vests  in  the  board 
of  Hbrary  trustees  absohite  power  to  fix  and  determine  the  amount  of 
the  levy  to  be  made  for  the  purpose  of  maintenance  of  the  Hbrary,  and 
of  creating  a  sinking  fund  for  the  purchase  of  a  lot  and  the  erection 
of  a  library  building,  subject  only  to  the  limitations  in  the  statute;  and 
that  the  duty  devolves  upon  the  city  council  to  levy  and  certify  the 
sums  so  certified  to  them  by  said  board ;  that  the  city  council  is  without 
any  discretion  in  the  matter.  On  the  contrary,  the  appellees  contend 
that  the  board  of  library  trustees  has  no  such  power ;  that  its  power  in 
the  matter  is  advisory  merely,  and  that  the  city  council  is  invested  with 
a  discretion  as  to  the  amount  or  amounts  which  shall  be  levied  for  the 
purposes  mentioned.  As  in  the  discussion  which  may  follow  refer- 
ence may  be  made  to  various  acts  of  the  legislature  touching  the  crea- 
tion and  maintenance  of  free  public  libraries,  it  may  tend  to  brevity 
to  here  recite  the  substance  of  all  such  statutes  which  can  have  any 
bearing  upon  the  question  under  consideration. 

Chapter  45,  Acts  13th  Gen.  Assem.,  provided  that  cities  of  the  first 
and  second  classes  might  levy  an  annual  tax  not  exceeding  one-half 
mill  on  the  dollar  of  the  taxable  property  in  such  city  for  the  main- 
tenance of  a  free  public  library  and  reading  room,  provided  a  suitable 
lot  and  building  be  first  donated  for  such  purposes.  The  city  council 
was  authorized  to  appoint  officers  for  such  library  and  reading  room. 
The  14th  general  assembly,  in  chapter  47,  extended  the  provision  of 
the  former  act  so  as  to  include  incorporated  towns,  increased  the 
amount  of  the  levy,  and  authorized  all  the  municipalities  referred  to 
in  the  act  out  of  the  money  raised  to  purchase  land  and  erect  buildings 
or  lease  rooms.  The  act  also  provided  that  before  exercising  any  of 
the  powers  conferred  it  should  be  accepted  by  a  vote  of  the  people. 
The  same  provisions,  in  substance,  were  incorporated  in  the  Code  of 
1873  (section  461),  in  which  it  was  declared  that  "the  establishment  and 
maintenance  of  a  free  public  library  is  hereby  declared  to  be  a  proper 
and  legitimate  object  of  municipal  expenditure."  Such  was  the  law 
in  force  at  the  time  the  electors  of  the  city  of  Des  Moines  voted  to 
accept  its  provisions,  and  to  establish  a  free  public  library. 

By  chapter  41,  Acts  25th  Gen.  Assem.,  it  was  provided  that  in  any 
city  which  had  accepted  the  provisions  of  Code,  §  461,  there  should  be 
created  a  board  of  library  trustees,  to  be  appointed  by  the  mayor,  with 
the  approval  of  the  council,  *  *  *  ^j-jfj  g^j(j  ^(^^  ^jgQ  contained  the 
following,  viz. :  "The  board  of  library  trustees  shall,  before  the  first 
day  of  August  in  each  year,  determine  and  fix  the  amount  or  rate  to 
be  appropriated  for  one  year  under  section  461  of  the  Code  of  Iowa 
for  the  maintenance  of  such  library,  and  cause  the  same  so  fixed  to 
be  certified  to  the  council,  and  the  council  shall  make  such  appropria- 
tion and  levy  the  necessary  tax  for  such  year  to  raise  said  sum  and 
certify  the  percentage  or  rate  not  exceeding  one  mill  on  the  dollar  of 
such  tax  to  the  county  auditor,  *  *  *  provided  that  in  cities  of 
the  first  class  the  city  council  may  and  shall  levy  and  certify  such  fur- 


SOURCE    OF   POWER  327 

ther  sum  of  tax  as  it  may  deem  expedient  to  create  a  sinking  fund  and 
pay  interest  under  the  provisions  of  chapter  18,  Acts  of  the  22d  Gen- 
eral Assembly,  and  acts  amendatory  thereof."  By  chapter  99  of  the 
acts  of  the  same  general  assembly  power  was  conferred  upon  the  city 
to  levy  and  collect  a  tax  of  not  exceeding  three  mills  on  the  dollar  to 
pay  interest  on  any  indebtedness  theretofore  contracted  or  to  be  there- 
after contracted  or  incurred  for  the  purchase  of  real  estate  and  the 
erection  of  a  building  or  buildings  for  a  public  library,  and  to  create  a 
sinking  fund  for  the  payment  of  such  indebtedness.     *     *     * 

By  chapter  50,  Acts  26th  Gen.  Assem.,  it  was  provided  that  the 
board  of  library  trustees  should  determine  and  fix  the  rate,  not  exceed- 
ing one  mill  on  the  dollar,  for  the  maintenance  of  the  library,  and  not 
exceeding  three  mills  on  the  dollar  for  the  purpose  of  paying  for  a 
building  and  the  creation  of  a  sinking  fund,  and  "cause  each  of  the 
amounts  or  rates  so  determined  and  fixed  to  be  certified  to  the  council, 
and  the  council  shall  levy  the  taxes  necessary  to  raise  said  sums  re- 
spectively for  such  year,  and  certify  the  percentage  or  rates  *  *  * 
of  such  tax  to  the  county  auditor." 

In  pursuance  of  the  provisions  of  chapter  41,  Acts  25th  Gen.  Assem., 
a  board  of  library  trustees  had  been  appointed.  In  March,  1892,  the 
city  of  Des  Moines,  as  it  then  existed,  by  a  vote  of  the  electors  accepted 
the  benefit  of  the  law  relating  to  public  libraries.  Prior  to  the  passage 
of  the  acts  of  the  26th  general  assembly,  the  city  council  was  clearly 
invested  with  discretionary  power  as  to  levying  a  tax  for  a  library 
building  and  for  the  creation  of  a  sinking  fund.  The  act  of  the  26th 
general  assembly  in  terms  seems  to  require  the  council  to  levy  and 
certify  the  tax  certified  to  it  for  maintenance  and  for  building  or  sink- 
ing fund  so  long  as  the  same  does  not  exceed  the  amount  provided  by 
the  statute. 

3.  The  questions  involved  in  this  appeal  are  of  great  interest  and  im- 
portance. Irrespective  of  our  duty  to  uphold  the  act  of  the  legislature 
as  constitutional,  if  it  be  possible  to  do  so  without  doing  violence  to 
well-known  legal  principles  anrl  accepted  canons  of  construction,  our 
interest  in  the  welfare  of  the  people,  which  is  so  largely  promoted  by 
the  establishment  and  maiiUenance  of  public  libraries,  would  prompt 
us  to  give  the  questions  presented  most  careful  consideration.  If  it  be 
conceded  that  a  tax  for  the  maintenance  of  a  pul)lic  library  and  for 
the  erection  of  a  library  building  is  a  tax  for  a  public  purpose,  and 
hence  one  which,  in  furtherance  of  the  general  pulilic  policy  of  the 
state,  may  be  compelled  to  be  levied,  may  the  legislature  authorize  its 
levy  by  the  board  of  library  trustees? 

Touching  the  power  of  the  legislature  to  delegate  the  taxing  power. 
Judge  Cooley  says:  "It  is  a  general  rule  of  constitutional  law  that  a 
sovereign  power  conferred  by  the  people  upon  any  one  branch  or  de- 
partment of  the  government  is  not  to  be  (lele},'ated  by  that  branch  or 
department  to  any  other.  This  is  a  principle  which  pervades  our  whole 
political  system,  and,  when  projjerly  understood,  |)crmits  of  no  cxccp- 


328  TAXATION 

tion,  and  it  is  applicable  with  peculiar  force  to  the  case  of  taxation. 
The  power  to  tax  is  a  legislative  power.  The  people  have  created  a 
legislative  department  for  the  exercise  of  the  legislative  power,  and 
within  that  power  lies  the  authority  to  prescribe  the  rules  of  taxation, 
and  to  regulate  the  manner  in  which  those  rules  shall  be  given  effect. 
There  is,  nevertheless,  one  clearly  defined  exception  to  the  rule  that 
the  legislature  shall  not  delegate  any  portion  of  its  authority.  The 
exception,  however,  is  strictly  in  harmony  with  the  general  features  of 
our  political  system,  and  it  rests  upon  an  implication  of  popular  assent, 
which  is  conclusive.  These  exceptions  relate  to  the  case  of  municipal 
corporations.  Immemorial  custom,  which  tacitly  or  expressly  has  been 
incorporated  in  the  several  state  constitutions,  has  made  these  organiza- 
tions a  necessary  part  of  the  general  machinery  of  state  government, 
and  they  are  allowed  large  authority  in  matters  of  local  government, 
and  to  a  considerable  extent  are  permitted  to  make  the  local  laws.  This 
indulgence  has  been  carried  into  matters  of  taxation ;  the  state  in  very 
many  cases  doing  little  beyond  prescribing  rules  of  limitation  within 
which,  for  local  purposes,  the  local  authorities  may  levy  taxes.  *  *  * 
The  legislature,  however,  in  thus  making  delegation  of  the  power  to 
tax,  must  take  it  to  the  corporation  itself,  and  provide  for  its  exercise 
by  the  proper  legislative  authority  of  the  corporation.  *  *  *  What 
is  true  of  the  state  is  equally  true  of  the  municipality, — that  the  power 
they  possess  to  tax  must  be  exercised  by  the  corporation  itself,  and 
cannot  be  delegated  to  its  officers  or  other  agencies."  Cooley,  Tax'n 
(2d  Ed.)  pp.  61,  63,  65.  The  doctrine  laid  down  by  the  learned  author 
is  that  the  delegation  of  the  power  to  tax  by  the  legislature  must  be 
made  to  the  municipality  itself,  and  that  it  cannot  be  delegated  to  other 
agencies. 

The  constitution  of  the  state  of  Illinois  contains  the  following  provi- 
sion: "The  corporate  authorities  of  counties,  townships,  school  dis- 
tricts, cities,  towns  and  villages  may  be  vested  with  power  to  assess  and 
collect  taxes  for  corporate  purposes.''  Const.  111.  1848,  art.  9,  §  5.  In 
construing  this  provision,  the  supreme  court  of  that  state  said  that  the 
phrase  "corporate  authorities,"  as  used  in  the  constitution,  must  be 
understood  as  "those  municipal  officers  who  are  either  directly  elected 
by  the  people  to  be  taxed,  or  appointed  in  some  mode  to  which  they 
have  given  their  assent."  People  v.  Mayor,  etc.,  of  City  of  Chicago, 
51  111.  17,  2  Am.  Rep.  278.  The  same  court,  in  construing  the  same 
constitutional  provision,  said :  "The  power  of  taxation  is,  of  all  pow- 
ers of  government  the  one  most  liable  to  abuse,  even  when  exercised 
by  the  direct  representatives  of  the  people;  and,  if  committed  to  per- 
sons who  may  exercise  it  over  others  without  reference  to  their  con- 
sent, the  certainty  of  its  abuse  would  simply  be  a  question  of  time.  No 
person  or  class  of  persons  can  be  safely  intrusted  with  irresponsible 
power  over  the  property  of  others,  and  such  a  power  is  essentially  des- 
potic in  its  nature,  and  violative  of  all  just  principles  of  government. 
It  matters  not  that,  as  in  the  present  instance,  it  is  to  be  professedly 


SOURCE    OF   POWER  329 

exercised  for  public  uses  by  expending  for  the  public  benefit  the  tax 
collected.  If  it  be  a  tax,  as  in  the  present  instance,  to  which  the  per- 
sons who  are  to  pay  it  have  never  given  their  consent,  and  imposed  by 
persons  acting  under  no  responsibility  of  official  position,  and  clothed 
with  no  authority  of  any  kind,  by  those  whom  they  propose  to  tax,  it 
is,  to  the  extent  of  such  tax,  misgovernment  of  the  same  character 
which  our  forefathers  thought  just  cause  of  revolution.  We  are  of 
opinion  that  we  do  no  violence  to  the  language  of  the  clause  in  the 
constitution  we  have  been  considering  by  holding  that  it  was  designed 
to  prevent  such  ill-advised  legislation  as  the  delegation  of  the  taxing 
power  to  any  person  or  persons  other  than  the  corporate  authorities 
of  the  municipality  or  district  to  be  taxed.  These  authorities  are  elect- 
ed by  the  people  to  be  taxed,  or  appointed  in  some  mode  to  which  the 
people  have  given  their  assent,  and  to  them  alone  can  this  power  be 
safely  delegated."    Harward  v.  Drainage  Co.,  51  111.  130.     *     *     * 

The  legislature  of  the  state  of  Kansas  passed  an  act  authorizing  the 
creation  of  a  board  of  road  commissioners,  and  empowering  them, 
among  other  things,  to  levy  taxes.  The  act  was  held  unconstitutional. 
Board  of  Com'rs  v.  Abbott,  52  Kan.  148,  34  Pac.  416.  The  question 
of  the  constitutionality  of  the  same  act  came  before  the  federal  court, 
and  the  court  said :  "Does  the  constitution  of  the  state  of  Kansas  au- 
thorize the  legislature  to  delegate  the  power  of  taxation  either  to  the 
signers  of  these  petitions  or  to  these  road  commissioners?  Can  a  tax 
be  absolutely  forced  upon  these  taxpayers  of  the  county,  either  by  the 
individuals  or  by  officials  in  whose  appointment  they  have  had  no 
voice?  The  powei  of  taxation  is  a  power  inherent  in  all  governments. 
In  a  constitutional  government,  the  people,  by  the  constitution,  confer 
it  on  the  legislature.  It  is  one  of  the  highest  attributes  of  sovereignty. 
It  includes  the  power  to  destroy.  It  appropriates  the  property  and 
labor  of  the  people  taxed.  Unrestrained  power  of  taxation  necessarily 
leads  to  tyranny  and  despotism.  Hence,  in  all  free  governments,  the 
power  to  tax  must  be  limited  to  the  necessities  for  the  jnirposcs  of 
government,  and  the  agencies  for  local  taxation  should  he  fixed,  and 
their  powers  limited,  by  organic  law  ;  and  they  shoidd  bo  so  selected  as 
to  be  directly  answerable  for  their  official  acts  to  their  local  con.stituen- 
cies  or  districts  to  be  taxed.  If  they  act  corruptly,  those  directly  inter- 
ested may  then  remove  them,  and  appoint  others.  If  those  directly  in- 
terested have  no  voice  in  their  .ippoinlment,  or  power  to  remove  them, 
they  have  no  means  of  correcting  their  abuses.  No  other  rule  can  se- 
cure those  to  be  taxed  from  oppression  and  fraud  on  the  part  of  the 
taxing  officers.  *  *  *  The  act  is  a  plain  violation  of  the  principle 
of  self-taxation,  and  a  clear  invasion  of  the  right  of  property.  The 
legislature  is  not  the  fountain— not  the  source— of  power.  Under  our 
system  of  government  the  lej^'islaturc  can  exercise  only  such  powers  as 
the  people  have  delegated  to  that  body,  cither  expressly  or  by  necessary 
implication,  by  the  constitution.  All  rights  not  so  delegated  arc  re- 
tained by  the  people.    The  right  of  life,  liberty,  and  property  is  among 


330  TAXATION 

the  inherent  and  inalienable  rights  that  the  people  did  not  commit  to 
the  legislature.  Constitutions  are  adopted  and  governments  admin- 
istered for  the  protection,  and  not  for  the  destruction,  of  these  reserved 
rights  of  the  people.  Illegal  or  oppressive  taxation  is  destructive  of  the 
right  of  property,  and  is  not  government,  under  the  constitution ;  but 
is  misgovernment."     Parks  v.  Board  of  Com'rs,  61  Fed.  436.     *     *     * 

Under  our  Constitution  the  power  of  taxation  has  been  vested  by  the 
people  in  the  legislature.  Const.  Iowa,  art.  3,  §  1 ;  City  of  Davenport 
V.  Chicago,  R.  I.  &  P.  R.  Co.,  38  Iowa,  643.  There  is  no  express  con- 
stitutional restriction  or  limitation  upon  the  power  of  the  legislature  in 
this  state,  and  that  body  may,  for  proper  and.  legitimate  purposes,  con- 
fer the  taxing  power  upon  municipalities.  2  Dill.  Mun.  Corp.  §  740; 
25  Am.  &  Eng.  Enc.  Law,  pp.  18,  71.  Nevertheless,  in  the  absence  of 
such  constitutional  restriction,  the  power  of  the  legislature  to  confer 
the  right  of  taxation  is  limited  by  implication.  Prouty  v.  Stover,  11 
Kan.  235.  So  it  is  said  in  Hanson  v.  Vernon,  27  Iowa,  TZ,  1  Am.  Rep. 
215:  "It  cannot  be  maintained  that  the  constitution  confers  upon  the 
state  government  absolute  and  unlimited  legislative  power,  authorizing 
all  laws  affecting  the  rights  and  property  of  the  people,  not  expressly 
prohibited  by  that  instrument.  *  *  *  There  is,  as  it  were,  back 
of  the  written  constitution,  an  unwritten  constitution,  if  I  may  use  the 
expression,  which  guaranties  and  well  protects  all  absolute  rights  of 
the  people.  The  government  can  exercise  no  power  to  impair  or  deny 
them.  Many  of  them  may  not  be  enumerated  in  the  constitution,  nor 
preserved  by  express  provisions  thereof,  notwithstanding  they  exist, 
and  are  possessed  by  the  people  free  from  governmental  interference." 
We  say,  then,  that  there  is  an  implied  limitation  upon  the  power  of  the 
legislature  to  delegate  the  power  of  taxation.  This,  of  necessity,  must 
be  so,  otherwise  the  legislature  might  clothe  any  person  with  the  power 
to  levy  taxes,  regardless  of  the  will  of  those  upon  whom  such  burdens 
would  be  cast,  and  such  person  might  be  directly  responsible  to  no 
one.     *     *     * 

It  is  said  that  it  is  not  true  that  power  to  determine  the  rate  of  taxes 
must  be  committed  to  the  proper  legislative  authority  of  the  corporation, 
and  certain  instances  in  this  state  are  cited  as  the  power  given  the 
executive  council  to  determine  the  rate  of  tax  for  state  purposes.  Code 
1873,  §  835.  But  counsel  have  cited  no  instance  in  the  legislation  of 
this  state,  and  we  have  found  none,  where  the  power  to  tax  was  con- 
ferred upon  a  board  or  officer  not  elected  by  and  immediately  responsi- 
ble to  the  people,  and  we  are  unwilling  to  extend  the  right  to  delegate 
such  power  to  any  body  or  person  not  directly  representing  the  people. 
The  danger  which  lies  in  delegating  such  power  to  any  person  or 
board  not  directly  responsible  to  the  taxpayers  is  so  forcibly  set  forth 
in  the  citations  we  have  made  that  we  need  not  enlarge  upon  it.  If 
the  power  to  tax  may  be  by  them  vested  in  a  board  of  library  trustees, 
against  the  will  of  the  people,  it  may  be  reposed  in  any  other  body 
which  is  not  directly  accountable  to  the  people.     *     *     * 


SOURCE    OF   POWER  331 

We  have  treated  this  statute  as,  in  effect,  authorizinsr  the  Hbrarv 
board  to  levy  the  tax.  In  fact,  it  in  terms  directs  them  to  fix  and  de- 
termine the  amount  of  the  tax,  which,  upon  being  certified  to  the  coun- 
cil, it  must  levy.  The  right  to  thus  fix  and  determine  is  equivalent  to 
the  right  to  levy.  Now,  the  uses  to  which  this  tax  is  to  be  put  are 
local,  and  the  benefits  to  be  derived  from  such  library  must  necessarily 
inure  mostly  to  the  people  of  the  city  of  Des  ]Moines.  Such  being  the 
case,  we  think  that  the  legislature  had  no  power  to  vest  the  levying  of 
this  tax  in  a  body  not  directly  responsible  to  the  people  of  the  city. 
The  levy  and  collection  of  a  tax  is  a  taking  of  the  property  of  the  tax- 
payer against  his  will,  and  such  a  necessary,  arbitrary,  and  fai'-reach- 
ing  power  ought  not  to  be  conferred  upon  a  body  of  persons  who  are 
not  the  direct  representatives  of  the  people,  who  are  not  elected  by 
them,  and  who,  therefore,  are  not  directly  responsible  to  them  unless 
the  people  assent  thereto.     *     *     * 

The  power  to  determine  and  levy  taxes  is  inherent  in  government. 
Its  exercise  for  proper  purposes  is  essential  to  the  very  existence  of 
government.  When  exercised  in  a  lawful  manner,  and  by  proi^cr  agen- 
cies of  the  state,  the  burdens  imposed  must  be  borne  by  those  upon 
whom  they  fall ;  but  when  exercised  by  officers  and  bodies  charged 
with  no  direct  responsibility  to  the  people  the  temptation  to  place  upon 
the  people  unnecessary  burdens  under  the  guise  of  taxation,  and  to 
take  from  them  a  portion  of  their  property  not  needed  for  legitimate 
purposes  of  government,  is  great.  It  may  be  admitted  in  the  case  be- 
fore us  that  the  board  of  library  trustees  is  composed  of  high-minded, 
honorable  men  and  women,  and  it  may  be  that  this  board  is  l)etter 
qualified  to  know  what  such  tax  should  be  than  is  the  city  council. 
However  that  may  be,  the  principle  is  wrong,  and  the  power  of  taxa- 
tion attempted  to  be  conferred  upon  the  trustees  is  a  long  step  in  the 
direction  of  permitting  boards  not  elected  by  or  directly  responsible  to 
the  people  to  determine  what  burden  the  taxpayers'  properly  shall  bear. 
We  hold  that  no  officer  and  no  board  not  elected  by  and  immediately 
responsible  to  the  people  can  be  made  the  repository  of  such  jwwcr. 
If  this  power  was  given  to  the  city  council,  and  it  was  abused,  the  peo- 
ple could,  at  least,  prevent  a  recurrence  of  the  wrong  at  the  polls ;  but 
if  it  be  reposed  in  a  body  not  elected  by  the  people  the  remedy  is  un- 
certain, indirect,  and  likely  to  be  long  flelayed.  The  absdhitely  unlini- 
itcd  power  of  taxation,  as  to  durri(if)n,  atUjni)ted  to  be  conferred  by  the 
act  under  consirkralion,  is  of  itself  a  forcible  reminder  that  the  power 
to  fix,  determine,  and  levy  a  lax  for  local  purposes  should  be  conferred 
upon  .some  body  which  stanfls  as  the  direct  representative  of  the  pcojile. 
to  the  enfl  that  an  abuse  of  such  power  may  be  speedily  and  dircclly 
corrected  by  those  whose  properly  nnist  bear  such  burdens.  The  act 
in  f|uestion  is  tmconstitutional  in  so  far  as  il  undertakes  to  confer  the 
arbitrary  power  upon  the  board  of  library  trustees  to  fix  and  determine 
the  amount  of  tax  to  be  levied  for  the  purposes  therein  mentioned,  and 
the  city  council  cannot  be  compelled  to  levy  (regardless  of  any  discre- 


332  TAXATION 

tion)  the  amounts   fixed   by  the  Hbrary  board,  and  certified  to  said 
council. 

The  questions  involved  in  the  case  were  not  raised  or  considered  in 
Orvis  V.  Board  of  Com'rs,  88  Iowa,  674,  56  N.  W.  294,  45  Am.  St. 
Rep.  252.  The  action  of  the  district  court  in  refusing  a  writ  of  man- 
damus and  in  rendering  a  judgment  against  the  plaintiff  for  costs  was 
correct,  and  the  judgment  is  affirmed. 


II.  Public  Purpose  Only 


MANNING  v.  CITY  OF  DEVILS  LAKE. 

(Supreme  Court  of  North  Dakota,  1904.    13  N.  D.  47,  99  N.  W.  51,  65  L.  R.  A. 

187,  112  Am.  St.   Rep.  652.) 

Action  by  Mabel  Manning  against  the  city  of  Devils  Lake  and  oth- 
ers.    Judgment  for  plaintiff,  and  defendants  appeal. 

Young,  C.  J.*  The  defendants  appeal  from  an  order  of  the  dis- 
trict court  of  Ramsey  county  continuing  a  temporary  injunction,  made 
upon  an  order  to  show  cause.  The  action  in  aid  of  which  the  restrain- 
ing order  was  issued  is  brought  for  the  purpose  of  permanently  en- 
joining the  defendants  from  issuing  and  negotiating  certain  bonds 
which  it  proposes  to  issue  for  the  purpose  of  constructing  and  main- 
taining a  certain  road  or  bridge  across  an  arm  of  Devils  Lake.  The 
plaintiff  alleges  in  her  complaint  that  she  is  a  resident,  property  owner, 
and  taxpayer  in  the  city  of  Devils  Lake ;  that  said  city  is  a  municipal 
corporation  organized  under  the  laws  of  this  state;  that,  at  a  city 
election  called  for  that  purpose,  a  majority  of  the  electors  voted  to 
issue  bonds  of  said  city,  in  the  sum  of  $6,500,  for  the  purpose  of 
paying  the  cost  of  construction  and  maintenance  of  a  certain  bridge, 
known  as  the  "Pelican  Point  Bridge,"  and  for  paying  outstanding 
warrants  of  the  city  of  Devils  Lake,  issued  in  aid  of  such  purpose; 
that  the  defendant  Ole  Skratass,  the  auditor  of  said  city,  has  adver- 
tised for  bids  for  said  bonds;  that  said  Pelican  Point  Bridge  is  lo- 
cated several  miles  outside  of  the  corporate  limits  of  said  city;  that 
the  acts  of  the  defendant  and  its  officers  in  attempting  to  issue  and 
dispose  of  said  bonds  for  the  purpose  aforesaid  are  ultra  vires  and 
wholly  void.     *     *     * 

The  question  involved  is  one  entirely  of  corporate  power.  The  facts 
are  not  in  dispute.  From  the  statement  of  facts  prefixed  to  appel- 
lants' brief,  it  appears  that  the  so-called  Pelican  Point  Bridge  is  situ- 

8  For  discussion  of  principles,  see  Cooley,  Mun.  Corp.  §§  139-141. 
4  Part  of  the  opinion  is  omitted. 


PUBLIC  PURPOSE    ONLY  333 

ated  in  Lake  township,  between  four  and  five  miles  southwest  of. 
and  outside  of  the  corporate  limits  of,  the  city  of  Devils  Lake,  and 
consists  of  an  embankment  of  earth  and  stone,  connecting  the  north 
and  south  shores  of  Devils  Lake  at  its  narrowest  point.  In  the  cen- 
ter, where  the  water  is  deepest,  there  is  a  pontoon  bridge  or  barge, 
about  100  feet  in  length,  connecting  the  embankments.  The  affidavits 
show  that  the  construction  of  this  so-called  bridge  was  commenced  in 
the  spring  of  1900  by  the  business  men  of  the  city  of  Devils  Lake, 
acting  through  a  citizens'  committee,  and  that  a  large  sum  of  money 
was  raised  by  private  subscription  and  expended  upon  its  construc- 
tion. The  land  on  the  north  side  of  the  lake  belongs  to  the  state  mili- 
tary reservation,  and  by  chapter  134,  p.  173,  Laws  1901,  the  Legisla- 
ture granted  the  right  to  locate  a  highway  thereon,  and  a  highway  was 
located  by  the  township  of  Lake,  in  which  said  military  reservation  is 
situated,  connecting  the  embankments  with  the  public  highways  lead- 
ing to  the  city  of  Devils  Lake.  The  land  on  the  south  side  is  included 
in  the  Ft.  Totten  Indian  reservation.  The  afiidavits  state  that  the  city 
of  Devils  Lake  acquired  a  right  of  way  over  the  tract  of  land  abut- 
ting on  the  south  side  from  the  allottee  Indian  owning  the  same,  with 
the  consent  of  the  United  States  government.  The  road,  as  con- 
structed by  the  citizens'  committee,  aside  from  the  pontoon  bridge  in 
the  center,  extended  about  3  feet  above  the  surface  of  the  water. 
Since  1901  the  waters  of  Devils  Lake  have  risen  about  38  inches,  ne- 
cessitating the  raising  of  the  embankments.  Some  $12,000  have  been 
expended.  The  expenditures  now  proposed  are  necessary  to  put  the 
road  in  permanent  and  safe  condition. 

The  affidavits  filed  by  the  defendants  show  that  there  is  a  large 
territory  south  of  the  city  of  Devils  Lake,  and  a  large  number  of 
people  tributary,  who  will  do  their  trading  at  that  city  if  the  bridge 
is  constructed  and  maintained ;  that  "the  amount  of  increased  trade 
and  business  brought  to  the  city  of  Devils  Lake  during  the  time  said 
highway  was  passable  in  the  summer  of  1901  *  *  *  aggregated 
an  average  of  approximately  two  hundred  fifty  dollars  a  day;  that 
said  increased  business  was  general  in  character,  and  a  direct  benefit 
to  all  engaged  in  business  in  said  city  of  Devils  Lake  at  said  lime." 
The  affidavits  also  show  that  there  are  more  than  1.000  .•diottee  In- 
dians residing  on  the  Ft.  Totten  Indian  reservation,  on  the  south  side 
of  the  lake,  who  are  largely  cngagcfl  in  agricultural  pursuits,  and  who 
will  do  their  trading  at  the  city  of  Devils  Lake,  providing  the  highway 
in  question  is  maintained  ;  that  there  are  a  large  number  of  persons 
in  "the  Cheyenne  River  country''  who  are  "naturally  tributary  to  the 
city  of  Devils  Lake,"  and  who  wonld  "market  tluir  woo<l  and  pur- 
chase their  sujjplies  at  Devils  Lake  if  the  bridge  were  maintained"; 
that  there  are  a  large  number  of  instructors  in  the  iiulustrial  school 
on  the  Indian  reservation  ;  that  said  school  consumes  a  vast  aniomit 
of  all  kinds  of  merchandise  and  supplies,  a  large  p«)rtion  of  which 
wouhl  be  purchased  at  saifl  city  if  said  highway  is  opene«l  for  travel; 


334  TAXATION 

that  there  is  approximately  100,000  acres  of  unoccupied  and  unallot- 
ted land  on  the  Indian  reservation,  which  it  is  proposed  to  open  to 
settlers,  and  that  this,  when  occupied  and  cultivated,  w^ill  increase  the 
commercial  importance  of  the  city  of  Devils  Lake  if  said  highway 
is  maintained;  that  the  completion  and  maintenance  of  said  highway 
communicating  with  the  land  south  of  Devils  Lake  "will  greatly  in- 
crease the  amount  of  marketing  and  trading  done  at  said  city  of  Devils 
Lake,  and  otherwise  greatly  improve  and  extend  its  commercial  re- 
lations." It  is  also  stated  that  "the  construction,  completion,  and  main- 
tenance of  said  highway  known  as  'Pelican  Point  Bridge'  is  a  com- 
mercial necessity  to  said  city,  and  that  it  will  greatly  extend  the  com- 
mercial importance  and  trade  relations  of  the  said  city;  that  it  will 
greatly  increase  the  amount  of  grain  marketed  in  said  city,  and  very 
materially  increase  and  extend  the  territory  tributary  to  the  said  city 
of  Devils  Lake,  and  will  be  a  direct  benefit,  to  a  very  appreciable  ex- 
tent, to  every  merchant,  property  owner,  taxpayer,  and  resident  of 
said  city." 

There  are  two  sufficient  reasons  why  the  proposed  expenditure  is 
illegal.  It  must  be  conceded  that  the  validity  of  the  bonds  and  war- 
rants in  question  cannot  be  sustained  unless  the  city  has  power  to 
provide  for  their  payment  by  taxation.  *  *  *  f^e  validity  of  a 
contract  of  a  municipal  corporation  which  can  only  be  fulfilled  by 
resort  to  taxation  depends  on  the  power  to  levy  a  tax  for  that  pur- 
pose. Savings  &  Loan  Ass'n  v.  Topeka,  20  Wall.  (87  U.  S.)  655,  22 
L.  Ed.  455;  Sharpless  v.  Mayor,  21  Pa.  147,  167,  59  Am.  Dec.  759; 
Hanson  v.  Vernon,  27  Iowa,  28,  1  Am.  Rep.  215;  Allen  v.  Inhab.  of 
J.,  60  Me.  127,  11  Am.  Rep.  185;  Whiting  v.  Fond  du  Lac,  25  Wis. 
188,  3  Am.  Rep.  30. 

It  is  proposed  to  expend  funds  derived  from  a  sale  of  these  bonds 
upon  a  road  or  bridge  which  is  not  a  legal  highway.  Such  an  expen- 
diture will  not  authorize  the  inposition  of  a  tax.  "It  has  been  decided 
that  an  assessment  for  making  and  opening  a  road,  where  no  road 
has  in  fact  been  laid  out,  and  where  consequently  the  land  is  the  sub- 
ject of  private  ownership,  and  no  highway  would  exist  when  the  money 
was  expended,  would  be  illegal  and  void."  1  Cooley  on  Tax'n  (3d 
Ed.)  216;  Philbrook  v.  Kennebec,  17  Me.  196;  People  v.  Saginaw 
Supervisors,  26  Mich.  22;  Pacific  Bridge  Co.  v.  Kirkham,  54  Cal. 
558 ;  Snyder  v.  Foster,  77  Iowa,  638,  42  N.  W.  506.  See,  also,  Coates 
v.  Campbell,  37  Minn.  498,  35  N.  W.  366.  Bridges  constitute  a  part 
of  the  public  highway.  Section  1091,  Rev.  Codes.  Section  1053,  Rev. 
Codes,  which  is  a  part  of  chapter  17  of  the  Political  Code  of  1899, 
commits  the  power  to  open  highways  outside  of  the  limits  of  incorpo- 
rated cities,  villages,  or  towns,  "all  proceedings  relative  thereto,"  and 
"all  matters  connected  therewith,"  to  the  board  of  county  commis- 
sioners or  board  of  township  supervisors.  Section  1114,  Rev.  Codes 
1899,  charges  township  supervisors  with  the  care  and  supervision  of 
roads  and  bridges  within  their  respective  townships. 


PUBLIC   PURPOSE    OXLY  335 

It  is  not  claimed  that  the  county  commissioners  of  Ramsey  county, 
or  the  supervisors  of  Lake  township,  in  which  the  "bridge"  is  situ- 
ated, have  taken  any  action  whatever  either  to  locate  it  or  recognize 
it  as  a  highway.  It  has  not  acquired  a  legal  character  as  a  public  high- 
w^ay  by  user,  under  section  1050,  Rev.  Codes  1899,  and  there  is  no 
pretense  that  it  was  laid  out  and  established  as  a  highway  under  chap- 
ter 17  of  the  Political  Code  of  1899.  On  the  contrary,  it  was  con- 
structed, as  we  have  seen,  by  private  individuals  and  by  private  sub- 
scription. The  duty  of  maintaining  and  keeping  in  repair  a  public 
highway,  regularly  established  (that  is,  a  legal  highway),  may  be  en- 
forced, and  the  public  interests  thereby  protected.  See  2  Cooley  on 
Tax'n  (3d  Ed.)  1293,  and  cases  cited.  The  construction  of  this  road 
imposed  no  such  obligation  upon  the  individuals  who  constructed  it. 
or  upon  the  county  or  township  in  which  it  is  situated.  In  short,  there 
exists  no  duty  to  maintain  and  keep  it  in  repair  which  the  public  can 
enforce.  Travis  v.  Skinner,  72  Mich.  152,  40  N.  W.  234;  Anthony 
V.  Inhab.  of  Adams,  42  Mass.  (1  Mete.)  284;  City  of  Goshen  v.  My- 
ers, 119  Ind.  196,  21  N.  E.  657;  Board  of  Township,  121  Ind.  379, 
23  N.  E.  257;  Houfe  v.  Town,  34  Wis.  608,  17  Am.  Rep.  463;  State 
V.  Supervisors,  41  Wis.  28.  If,  therefore,  no  other  objection  existed 
than  that  just  considered,  it  alone  would  be  sulljcicnt  to  render  the 
proposed  expenditure  illegal. 

But  aside  from  the  fact  that  it  is  proposed  to  expend  funds  derived 
by  local  taxation  upon  a  bridge  which  is  not  located  upon  a  legal 
highway,  the  proposed  expenditure  is  illegal  for  another  reason.  It 
is  not  for  a  corporate  use  or  purpose,  but  is,  on  the  contrary,  for  pri- 
vate benefit.  The  doctrine  of  the  cases  on  this  point  is  stated  in  2 
Dillon  on  Munic.  Corp.  (4th  Ed.)  §  736  (587),  as  follows:  "The  taxing 
power  of  the  state  consists  in  its  authority  to  levy  and  collect  taxes 
and  assessments,  which  are  in  the  nature  of  special  taxes.  Taxes 
(including  in  the  term  assessments)  are  burdens  or  charges  imposed 
by  the  Legislature,  or  under  its  authority,  upon  pcnsons  and  properly, 
to  raise  money  for  public,  as  distinguished  from  private,  purposes,  or 
to  accomplish  some  end  or  object  public  in  its  nature.  There  can 
be  no  legitimate  taxation  to  raise  money,  unless  it  be  destiiK'<l  for  the 
uses  and  benefit  of  the  government,  or  some  of  its  nnniicipalities  or 
divisions  invested  with  the  power  of  auxiliary  or  local  administration. 
A  public  use  or  purpose  is  of  the  essence  of  the  tax."     •     *     * 

The  develoimient  of  the  commerce  or  trade  of  a  city  is  not  a  cor- 
porate purpose.  Instatices  are  numerous  where  cities  have  attemjUed 
to  promote  their  commercial  imi)ortancc  by  aiding  manufacturing  and 
industrial  enterprises  through  the  aid  of  local  taxation,  and  in  every 
instance  the  attempted  exercise  of  power,  when  called  in  (luestinn.  has 
been  condemned  as  unlawful.  To  bring  any  particular  subject  within 
the  description  of  a  cori)orate  purpose,  "it  must  appear  to  be  m..ncy 
necessary  to  the  execution  of  some  corporate  i>ower,  the  enjoyment  of 
Bome  corporate  right,  or  the  performance  of  some  corporate  duty,  as 


336  TAXATION 

established  by  law  or  by  long  usage."  Spaulding  v.  Lowell,  40  Mass. 
{23  Pick.)  71.  "Municipal  corporations  possess  only  a  limited  right 
to  bind  themselves  and  the  inhabitants  and  property  within  their  re- 
spective limits  by  civil  contracts.  Their  contracts  will  be  valid  when 
made  in  relation  to  objects  concerning  which  they  have  a  duty  to 
perform,  an  interest  to  protect,  and  a  right  to  defend ;  but  here  is  the 
extent  at  once  of  their  right  and  their  power.  They  cannot  engage  in 
enterprises  foreign  to  the  purpose  for  which  they  were  incorporated, 
nor  assume  responsibilities  which  involve  undertakings  not  within  the 
compass  of  their  corporate  powers."  Vincent  v.  Inhab.  of  Nantucket, 
66  Mass.  (12  Cush.)  103.     *     *     * 

In  Ottawa  v.  Gary,  108  U.  S.  110,  2  Sup.  Ct.  361,  27  L.  Ed.  669, 
it  was  said  that  the  power  to  govern  a  city  does  not  imply  power  to 
expend  the  public  money  to  make  the  water  in  the  rivers  available  for 
manufacturing  purposes.  "The  charter  confers  all  the  powers  usually 
granted  to  a  city  for  the  purposes  of  local  government,  but  that  has 
never  been  supposed,  of  itself,  to  authorize  taxes  for  everything 
vi'hich,  in  the  opinion  of  the  city  authorities,  would  promote  the  gen- 
eral prosperity  and  welfare  of  the  municipality.  Undoubtedly,  develop- 
ment of  the  water  power  of  the  streams  that  traverse  the  city  would 
add  to  the  commerce  and  growth  of  the  citizens.  But  certainly  power 
to  govern  the  city  does  not  imply  power  to  expend  the  public  money 
to  make  the  water  in  the  rivers  available  for  manufacturing  pur- 
poses.    *     *     * '' 

In  1  Cooley  on  Tax'n  (3d  Ed.)  206,  it  is  said  that :  "However  im- 
portant it  may  be  to  the  community  that  individual  citizens  should 
prosper  in  their  industrial  enterprises,  it  is  not  the  business  of  gov- 
ernment to  aid  them  with  its  means.  Enlightened  states,  while  giving 
all  necessary  protection  to  their  citizens,  will  leave  every  man  to  de- 
pend for  his  success  and  prosperity  in  business  on  his  own  exer- 
tions, in  the  belief  that  by  doing  so  his  own  industry  will  be  more 
certainly  enlisted,  and  his  prosperity  and  happiness  more  probably 
secured.  It  may  therefore  be  safely  asserted  that  taxation  for  the 
purpose  of  raising  money  from  the  public  to  be  given  or  even  loaned 
to  private  persons,  in  order  that  they  may  use  it  in  their  individual 
business  enterprises,  is  not  recognized  as  an  employment  of  the  power 
for  a  public  use.  In  contemplation  of  law,  it  would  be  taking  the 
common  property  of  the  whole  community  and  handing  it  over  to 
private  parties  for  their  private  gain,  and  consequently  unlawful.  Any 
incidental  benefits  to  the  public  that  might  flow  from  it  could  not 
support  it  as  legitimate  taxation."     *     *     * 

It  may  be  safely  stated  that  no  case  can  be  found  sustaining  an 
expenditure  by  a  city,  as  for  a  corporate  use  and  purpose,  when  the 
principal  object  of  the  expenditure  is  to  promote  the  trade  and  business 
interests  of  the  city,  and  the  benefit  to  the  inhabitants  is  merely  in- 
direct and  incidental.     The  cases  condemning  such  efforts  are  almost 


PUBLIC   PURPOSE    ONLY  337 

numberless.  In  1872  the  business  and  manufacturing  district  of  Bos- 
ton was  destroyed  by  fire.  The  Legislature  of  Massachusetts,  called 
in  special  session  for  that  purpose,  passed  an  act  authorizing  the  city 
of  Boston  to  issue  bonds  to  the  amount  of  $20,000,000  to  render  aid 
in  the  way  of  loans  in  rebuilding  the  burned  district.  In  a  well-rea- 
soned opinion,  the  soundness  of  which  has  never  been  questioned,  but 
always  approved,  the  Supreme  Court  of  that  state  held  that  the  pro- 
posed expenditure  was  not  for  a  public  use  or  purpose,  and  would  not 
sustain  the  power  of  taxation,  and  that  the  act  was  unconstitutional 
and  void.  We  quote  at  length  from  the  very  lucid  opinion  in  that  case  : 
"The  power  to  levy  taxes  is  founded  on  the  right,  duty,  and  respon- 
sibility to  maintain  and  administer  all  the  governmental  functions  of 
the  state,  and  to  provide  for  the  public  welfare.  To  justify  any  exer- 
cise of  the  power  requires  that  the  expenditure  which  it  is  intended 
to  meet  shall  be  for  some  public  service,  or  some  object  which  concerns 
the  public  welfare.  The  promotion  of  the  interests  of  individuals, 
either  in  respect  of  property  or  business,  although  it  may  result  inci- 
dentally in  the  advancement  of  the  public  welfare,  is,  in  its  essential 
character,  a  private,  and  not  a  public,  object.  However  certain  and 
great  the  resulting  good  to  the  general  public,  it  does  not,  by  reason 
of  its  comparative  importance,  cease  to  be  incidental.  The  incidental 
advantage  to  the  public  or  to  the  state  which  results  from  the  promo- 
tion of  private  interests  and  the  prosperity  of  private  enterprises  or 
business  does  not  justify  their  aid  by  the  use  of  public  money  raised 
by  taxation,  or  for  which  taxation  may  become  necessary.  It  is  the 
essential  character  of  the  direct  object  of  the  expenditure  which  must 
determine  its  validity,  as  justifying  a  tax,  and  not  the  magnituilc  of  the 
interests  to  be  affected,  nor  the  degree  to  which  the  general  advantage 
of  the  community,  and  thus  the  public  welfare,  may  be  ultimately 
benefited  by   their  promotion.     *     *     * " 

The  facts  of  this  case  bring  it  within  the  principle  of  the  cases  to 
which  we  have  just  referred.  The  proposed  expenditure  is  not  for 
a  bridge  upon  the  streets  of  the  city,  nor  at  or  near  its  boundaries, 
for  the  convenience  of  its  inhabitants.  On  the  contrary,  the  "bridge" 
in  question  is  almost  five  miles  from  the  city  limits,  aiul  is  neither  a 
necessity,  nor  even  a  convenience,  to  the  inhabitants  of  the  city  f(ir 
traveling  purposes.  Its  utility  and  avowed  purpose  is  to  provide  the 
inhabitants  of  an  outlying  and  remote  district  lying  south  oi  the  lake 
with  a  convenient  mode  of  reaching  the  city  of  I^evils  Lake  to  do  their 
trading,  and  thereby  increase  the  trade  of  the  merchants  and  busi- 
ness men  of  the  city.  The  direct  pur|>ose  of  the  expenditure  is  for 
the  benefit  of  those  who  will  travel  the  road,  and  the  business  men 
who  will  i)ront  by  their  tra<le.  The  benefit  which  will  accrue  to  the 
inhabitants  of  the  city  is  merely  incidental  and  indirect.  As  has  already 
been  pointed  out,  such  benefits  do  not  constitute  a  public  purpose  for 
which  a  tax  may  be  imposed.  The  expenditure  is  cssciUially  for  a 
CooLEY  Cases  Mun.C. — '22 


338  TAXATION 

private  purpose.  For  this  reason,  and  independent  of  all  other  consid- 
erations, the  bonds  in  question  are  vuiauthorized  and  void. 

In  reaching  this  conclusion,  we  do  not  unqualifiedly  assent  to  the 
contention  of  plaintiff's  counsel  that  the  boundaries  of  a  city  mark  the 
limits  of  the  lawful  exercise  of  its  corporate  power,  and  that  there  can 
be  no  expenditure  for  a  corporate  purpose,  the  object  of  which  is  lo- 
cated outside  of  its  boundaries.  For  obvious  reasons,  the  exercise 
of  its  political  and  governmental  powers  is  restricted  by  its  boundaries. 
But,  in  the  exercise  of  other  corporate  functions,  which  aft'ect  the 
health,  safety,  and  convenience  of  its  inhabitants,  and  may  be  said' 
to  be  of  a  private  nature,  the  reason  for  the  limitation  which  rests 
upon  the  exercise  of  its  governmental  and  political  power  does  not 
exist.  For  this  reason  it  has  been  generally  held  that  a  city  can  ex- 
pend corporate  funds  for  parks,  drains,  sewers,  waterworks,  break- 
waters, pesthouses,  and  cemeteries.  It  has  also  been  held  that  they 
may  construct  bridges  at  or  immediately  outside  of  their  boundaries, 
when  necessary  to  serve  the  convenience  of  their  inhabitants.  Such 
was  the  holding  in  the  Brooklyn  Bridge  Case  (People  v.  Kelly,  76  N. 
Y.  475),  and  for  the  same  reasons  the  right  has  been  sustained  in  nu- 
merous other  cases.  The  power  of  a  city  corporation  to  exercise  func- 
tions of  a  private  nature  outside  of  its  limits  is  recognized  to  some 
extent  by  the  statute  in  enumerating  the  powers  of  city  councils.  See 
subdivisions  7,  60,  §  2148,  and  section  2503,  Rev.  Codes  1899.  But 
as  already  stated,  the  "bridge"  here  in  question  cannot  be  said  to  be 
a  convenience  to  the  inhabitants  of  the  city  of  Devils  Lake.  • 

The  proposed  expenditure  cannot,  therefore,  be  sustained  as  for 
a  corporate  purpose.  The  order  appealed  from  will  be  affirmed.  All 
concur. 


III.  Subjects  of  Taxation  ' 


ADAMS  V.  DUCATE. 

(Supreme  Court  of  Mississippi,  1905.     86  Miss.  276,  38  South.  497.) 

W.  K.  M.  Ducate  and  others  were  assessed  for  back  taxes  by  the 
city  of  Biloxi,  for  taxes  alleged  to  be  due  for  the  years  from  1886 
to  1896,  inclusive,  on  personal  property  owned  by  them  during  these 
years.  The  city  assessor,  on  the  order  of  the  state  revenue  collector, 
assessed  this  property  as  property  which  had  escaped  taxation,  and 
notice  was  given  as  required  by  law.  Ducate  and  the  others  appeared 
before  the  mayor  and  board  of  aldermen  and  objected  to  the  assess- 
ments, and  they  were  vacated.    From  that  order  the  revenue  agent  ap-- 

B  For  discussion  of  principles,  see  Cooley,  Mun.  Corp.  §  143. 


SUBJECTS   OF   TAXATION  339 

pealed  to  the  circuit  court,  where  the  action  of  the  mayor  and  board 
of  aldermen  was  affirmed.    From  that  judi,mient  this  appeal  is  taken. 

TruIvY,  J.  The  charter  of  the  city  of  Biloxi  provides:  "That  the 
resources  of  the  corporation  may  be  derived  from  such  establishments 
as  may  be  authorized  and  put  to  use  or  rent,  and  from  the  taxes  on 
privileges  granted  under  the  provisions  of  this  act,  and  from  the  fines 
to  be  assessed  for  the  violations  of  its  ordinances,  and  the  mayor  and 
aldermen  are  hereby  authorized  to  levy  and  collect  for  the  use  of  said 
town,  on  all  real  estate  within  the  corporation,  which  is  by  law  taxable 
for  state  purposes :  provided,  that  said  tax  shall  not  exceed  in  any  one 
year  one-fourth  of  one  per  cent,  upon  its  assessed  value,  and  said 
mayor  and  aldermen  shall  have  power  to  tax  vendors  of  vinous  and 
spirituous  liquors  an  amount  not  to  exceed  fifty  per  cent,  of  the  amount 
levied  for  state  purposes." 

This  constitutes  the  sole  authority  which  the  municipal  authorities 
possess  with  regard  to  the  levying  of  taxes,  and,  as  the  power  of 
the  revenue  agent  is  purely  a  derivative  one,  it  also  defines  the  scope 
of  his  authority  in  the  premises.  It  will  be  noted  that  by  the  funda- 
mental law  of  this  municipality  its  resources  are  to  be  derived  from 
certain  specifically  and  definitely  designated  sources.  It  is  not  granted 
any  general  authority  to  levy  taxes,  but  merely  a  restricted  power  to 
levy  on  a  certain  specifically  denominated  species  of  property.  The 
principle  of  law  that  a  municipality  can  only  exercise  such  general 
power  of  taxation  as  is  delegated  to  it  by  the  state  is  of  such  universal 
acceptation  as  to  be  now  both  unquestioned  and  unquestionable.  If  the 
sovereign  does  not  expressly  delegate  power  to  tax  to  a  municipality, 
it  can  levy  no  taxes  for  general  purposes  by  any  inherent  power. 

In  the  instant  case  we  find  that  the  city  of  Biloxi  was  not  granted 
any  power  to  assess  any  tax  on  any  class  or  species  of  personal  proj)- 
crty.  Being  without  power  to  make  such  levy,  acting  thrtjugh  its 
own  legally  constituted  fiscal  officers,  the  revenue  agent  cannot  com- 
pel it  to  levy  such  tax.  This  distinction  is  ])lainly  recognized  in  the 
case  of  Adams,  Rev.  Agt.,  v.  Kuykendall,  .S3  Miss.  571,  35  v'^outh.  iS30. 
That  case  was  one  where  the  Legislature,  having  granted  a  munici- 
pality full  and  complete  power  to  assess  taxes  upon  every  species  of 
property,  both  real  and  ])ersonal,  undertook  to  except  from  the  op- 
eration of  this  general  grant  of  power  a  certain  specially  favored  class 
of  solvent  crerlits,  and  this  exception  was  held  to  lie  invalid,  as  being 
in  contravention  (jf  the  "uniformity  and  e(|uality"  clause  of  the  Con- 
stitution. But  in  that  case  the  court  .says:  "It  may  be  taken  as  an  es- 
tablished doctrine  that  municipalities  derive  their  jwwer  of  levying 
taxes  for  general  purposes  only  through  a  delegation  from  the  state. 
The  sovereign  power  of  taxation  is  vested  .solely  in  the  state."  In 
the  instant  case  the  sovereign  did  not  choose  to  grant  the  city  of 
Biloxi  a  general  and  unlimited  power  to  levy  taxes,  and  no  taxing 
power  can  be  vested  in  a  nnmicipality,  nor  can  a  restricted  grant  be 
expanded,   by  judicial   construction.     This  would  be  legislation. 


340  TAXATION 

The  authorities  of  the  municipality  being  without  power  to  levy  the 
tax  which  the  revenue  agent  seeks  to  have  imposed  and  collected,  it 
follows  that  the  judgment  of  the  circuit  court  in  refusing  to  command 
them  to  do  an  unwarranted  and  void  act  was  correct.    Affirmed. 


PERKINS  v.  CITY  OF  BURLINGTON. 

(Supreme  Court  of  Iowa,  1SS9.     77  Iowa,  553,  42  N.  W.  441.) 

The  plaintiff  is  the  owner  of  18  acres  of  land  within  the  corpo- 
rate limits  of  the  city  of  Burlington.  In  the  year  1886  the  city  au- 
thorities assessed  said  land  for  taxation,  and  levied  taxes  thereon  for 
city  purposes.  The  plaintiff  brought  this  action  in  equity,  to  en- 
join the  city  and  its  treasurer  from  the  collection  of  said  taxes,  upon 
the  ground  that  said  land  was  not  subject  to  city  taxes.  The  cause 
was  submitted  to  the  court  upon  an  agreed  statement  of  facts,  and 
there  was  a  decree  dismissing  the  petition.     Plaintiff  appeals. 

RoTHROCK,  J.®  1.  The  land  upon  which  the  taxes  were  levied 
constitutes  the  plaintiff's  homestead,  and  it  lies  within  the  boundaries 
of  the  city,  as  defined  by  an  act  of  the  general  assembly  of  this  state, 
approved  February  14,  1851.  No  city  taxes  were  levied  upon  the 
land  until  the  year  1886.  The  location  and  purposes  for  which  the 
premises  have  been  used  are  set  forth  in  the  agreed  statement  of 
facts,  as  follows : 

''The  aforesaid  tract  of  land  is  not,  and  has  never  been,  divided 
into  lots,  nor  intersected  by  streets  or  alleys,  but  has  been  used  and 
occupied  in  one  entire  tract  by  the  plaintiff  as  his  homestead.  About 
three-quarters  of  an  acre  is  occupied  by  the  house  and  a  portion  of 
the  lawn  of  the  plaintiff ;  about  an  acre  is  occupied  by  barns  and  out- 
buildings and  stable-yard,  and  a  small  portion  is  occupied  by  a  house, 
for  the  accommodation  and  residence  of  the  plaintiff's  servant,  en- 
gaged in  the  care  of  his  domestic  animals  and  other  matters  about 
his  residence,  and  from  which  no  rent  is  now,  or  ever  has  been,  de- 
rived, except  as  the  same  has  been  included  in  the  compensation  of 
the  servant  for  his  labor.  The  remainder  of  the  tract  of  land  is 
occupied  by  garden,  orchard,  and  wooded  pasture-land.  The  tract 
is  situated  more  than  one  mile  from  the  business  center,  and  a  large 
part  thereof  is  not  suitable  for  subdivision  into  lots." 

Second.  "It  is  further  agreed  that  the  above-described  tract  of  land 
is  not  held  for  speculative  purposes,  nor  with  the  intention  of  dividing 
the  same  into  lots,  but  that  it  is,  and  for  many  years  has  been,  oc- 
cupied by  the  plaintiff  and  his  family  as  their  homestead  and  resi- 
dence, and  used  in  good  faith,  in  the  manner  and  for  the  purposes 
above  set  out,  and  for  no  other  purpose,  and  with  the  intention  of 
so  continuing." 

«  Part  of  the  opinion  is  omitted. 


SUBJECTS   OF   TAXATION  341 

A  plat  of  the  land,  and  of  that  part  of  the  city  adjacent  to  it,  is 
exhibited  with  and  made  a  part  of  the  agreed  statement  of  facts,  from 
which  it  appears  that  the  land  adjoining  plaintiff's,  on  all  sides,  is 
laid  out  in  lots  and  streets  and  alleys.  There  are  streets  on  three 
sides,  and  an  alley  on  the  other  side.  An  electric  light  is  maintained 
by  the  city  at  the  intersection  of  the  streets,  at  one  corner  of  the 
land,  and  the  city  also  lights  at  public  expense  a  line  of  gas-lamps 
upon  one  of  the  streets  to  plaintiff's  house.  The  city  water-works 
extend  to  plaintiff's  residence,  and  there  is  a  public  hydrant  in  front 
of  his  house.  A  fire  station  is  maintained  by  the  city  near  the  land. 
Street-cars  run  on  two  sides,  and  one  block  from  the  land.  The  city 
w^orks  and  has  in  reasonably  good  condition  all  the  streets  surround- 
ing the  property;  and  there  is  a  public  school  building  about  two 
blocks  distant. 

From  these  facts  it  would  seem  that,  under  the  authority  of  Fulton 
V.  City  of  Davenport,  17  Iowa,  404,  and  Brooks  v.  Polk  Co.,  52 
Iowa,  460,  3  N.  W.  494,  the  plaintiff's  land  is  subject  to  taxation  ftr 
city  purposes.  The  plaintiff  appears  to  have  all  the  benefits  of  light, 
water,  streets,  railroads,  and  fire  stations,  which  are  common  to  that 
part  of  the  city  which  surrounds  his  land.     ♦     *     ♦     Affirmed. 


TAYLOR  V.  CITY  OF  WAVERLY. 

(Supreme  Court  of  Iowa,  1895.     04  Iowa.  601.  n:{  N.  W.  .".17.) 

Plaintiff,  the  owner  of  90  acres  of  land  situated  witliin  the  incor- 
porated limits  of  the  defendant  city,  prosecutes  lliis  action  U)  cancel 
certain  taxes  levied  upon  said  lands  for  general  incorporation  i)ur- 
poses  for  the  year  1893,  and  to  restrain  the  collection  thereof.  Judg- 
ment was  entered  for  plaintiff  as  prayed.     Defendant  apix-als. 

GivKN,  C.  J.  1.  The  grounds  up(jn  which  i)laintifr  claims  that 
his  lands  are  excmj)!  from  taxation  for  general  nnuiicipal  piirf)o.scs 
other  than  for  road  tax  are  as  follows : 

"Par.  3.  That  said  lands  and  each  piece  and  tract  thereof  is  oc- 
cupied and  used  in  good  faith  by  the  owner  for  agricultural  pur|)osc.s 
only. 

"Par.  4.  That  none  of  said  lands  have  been  laid  out  or  platted  into 
city  lots,  nor  is  it  held  for  future  .speculation  as  city  pnipf  rtv  ..r  f-ir 
platting  as  such. 

"Par.  5.  That  none  of  it  adjoins  any  part  of  the  platted  portion  oi 
said  city,  nor  does  any  of  it  lie  so  near  to  the  platted  part  of  the  city 
that  the  corj)orate  autlK)rities  cainiot  open  and  improve  its  strcct.s 
and  alleys  and  extenrl  to  the  inhabitants  of  the  city  the  usual  police 
regulations  and  advantages  without  incidentally  benefiting  the  pro- 
prietors in  personal  privileges  and  accommodations  or  the  enhance- 
ment of  the  value  of  any  part  tiiereof. 


342  TAXATION 

"Par.  6.  That  none  of  the  land  derives  any  benefit  from  the  water 
works  or  the  .street  Hghting  or  the  poHce  regulations  of  said  city,  or 
any  special  advantages  from  the  work  done  on  streets  of  the  city, 
and  none  of  the  lands  are  needed  for  the  extension  of  the  streets  or 
alleys  of  said  city." 

The  rule  in  such  cases  is  stated  in  Fulton  v.  City  of  Davenport,  17 
Iowa,  405,  as  follows :  "But  the  rule  which  we  would  deduce  on 
this  subject,  and  under  which  a  large  majority  of  cases  might,  as  it 
seems  to  us,  be  determined,  is  this :  When  the  proprietors  of  un- 
dedicated  town  property,  being  locally  within  the  corporate  limits, 
hold  such  close  proximity  to  the  settled  and  improved  parts  of  the 
town  that  the  corporate  authorities  cannot  open  and  improve  its 
streets  and  alleys,  and  extend  to  the  inhabitants  thereof  its  usual 
police  regulations  and  advantages,  without  incidentally  benefiting 
such  proprietors  in  their  personal  privileges  and  accommodations, 
or  in  the  enhancement  of  their  property,  then  the  power  to  tax  the 
same  arises ;  but  in  its  exercise  great  care  and  circumspection  should 
be  observed,  lest  perchance  injustice  and  oppression  may  ensue." 
In  Durant  v.  Kaufifman,  34  Iowa,  194,  it  is  said :  "The  mere  fact 
that  lands  are  included  within  the  limits  of  a  municipal  corporation 
does  not  authorize  their  taxation  for  general  city  purposes.  Under 
certain  conditions,  they  are  exempt  therefrom.  These  conditions  are 
such  that  the  property  proposed  to  be  taxed  derives  no  benefit  from 
being  within  the  city  limits.  This  is  the  rule  recognized  by  the 
various  decisions  of  this  court  upon  this  subject," — citing  cases. 

2.  We  think  the  evidence  fully  establishes  each  of  the  allegations 
made  by  plaintiff  quoted  above.  The  land  has  always  been  occupied 
and  used  for  agricultural  purposes  only,  except  that  for  a  time  the 
dwelling  house,  outbuildings,  and  ground  used  therewith  were  rent- 
ed for  residence  purposes  to  one  who  was  not  engaged  in  farming 
the  land.  The  land  is  not  adjoining  the  platted  portion  of  the  de- 
fendant city,  but  is  remote  therefrom,  with  other  unplatted  farm 
lands  lying  between.  None  of  this  land  has  ever  been  laid  out  or 
platted  into  city  lots,  nor  does  it  appear  to  have  been  held  for  future 
speculation  as  city  property.  There  is  no  street  or  alley  extending 
to  these  lands,  except  a  public  highway,  running  along  the  west 
line  thereof.  The  nearest  street,  alley,  or  sidewalk  is  200  rods  dis- 
tant from  said  land,  the  nearest  hydrant  250  rods,  the  nearest  city 
lamp  250  rods,  and  the  nearest  water  supply  for  extinguishing  fire  is 
one  mile  distant,  and  the  property  is  outside  of  the  reach  of  the  city's 
fire  protection. 

It  is  argued  on  behalf  of  the  appellant  that  the  property  was  not 
being  used  exclusively  for  agricultural  purposes,  that  it  was  at  least 
incidentally  benefited  by  the  police  and  fire  protection  afforded  by  the 
city,  and  by  the  privileges  of  the  city  library.  We  do  not  think  that 
the  mere  fact  that  the  house  was  separately  rented  from  the  lands 
for  a  time  made  the  use  other  than  it  theretofore  had  been,  namely, 


SUBJECTS   OF   TAXATION  343 

for  agricultural  purposes.  It  is  quite  evident  that  this  remote  place 
neither  needed  nor  received  any  protection  from  the  very  limited 
police  force  of  the  defendant  city,  and,  as  we  have  said,  the  property 
was  entirely  out  of  reach  of  any  of  the  appliances  of  the  city  for 
extinguishing  fires.  While  it  is  true  the  occupants  of  this  property 
might  enjoy  the  privileges  of  the  city  library,  it  does  not  appear  that 
those  privileges  were  limited  to  residents  within  the  city  limits.  The 
fact  is  that  this  land,  remote  as  it  is,  is  not  available  as  city  property 
for  either  residence  or  business  purposes,  under  the  present  demand's 
of  the  defendant  city.  It  does  not  adjoin  the  platted  portion  of 
the  city,  is  not  needed  for  streets  or  alleys,  and  derives  no  benefit 
whatever  from  taxes  expended  for  city  purposes  other  than  the  road 
tax  which  goes  to  keep  in  repair  the  highway  by  which  the  city  is 
reached. 

We  think  the  case  is  clearly  within  the  rule  as  we  have  quoted  it 
above,  and  that  the  judgment  of  the  district  court  should  be  af- 
firmed. 


344  ACTIONS 


ACTIONS 
I.  Mandamus  * 


STEVENS  V.  MILLER. 

(Court  of  Appeals  of  Kansas,  1S96.     3  Kan.  App.  192,  43  Pac.  439.) 

Cole,  J. 2  On  October  19,  1888,  Ida  L.  Miller  recovered  a  judg- 
ment against  the  city  of  Parsons  for  injuries  received  upon  a  de- 
fective sidewalk  in  said  city.  On  November  19,  1888,  said  Ida  L. 
Miller  died,  intestate,  leaving  as  her  heirs  at  law  her  husband  and 
one  child.  On  March  4,  1889,  the  action  was  revived  in  the  names 
of  William  C.  Miller,  husband  of  Ida  L.  Miller,  deceased,  and  J.  H. 
Lyles,  guardian  of  said  minor  child.  Said  revivor  was  had  upon 
due  notice  to  the  defendant  and  appearance  by  its  attorney,  and  with- 
out objection  upon  the  part  of  the  defendant.  Thereupon  the  city  of 
Parsons  made  a  case  for  the  supreme  court,  which  was  on  March  29, 
1890,  dismissed  by/  said  court.  On  May  6,  1890,  a  petition  was  pre- 
sented to  the  district  court  of  Labette  county  for  an  alternative  writ 
of  mandamus  to  compel  the  levy  of  a  tax  for  the  payment  of  said 
judgment.  The  alternative  writ  was  granted  on  said  date,  and  on  the 
22d  of  May  the  city  of  Parsons  appeared  in  the  district  court,  and 
filed  a  motion  to  quash  said  writ,  for  reasons  contained  in  the  mo- 
tion; and  thereupon,  on  the  25th  of  May,  the  district  court,  upon 
motion  of  the  plaintififs  below,  allowed  the  said  writ  to  be  amended, 
the  defendant  being  present  by  its  attorney,  and  having  notice  of  said 
amendment.  The  defendant  then  filed  its  answer  and  return,  which 
consisted  of  a  general  denial  and  an  allegation  that  the  revivor  pro- 
ceedings were  had  without  notice  to  the  defendant  city  of  Parsons ; 
that  the  same  were  void  ;  that  plaintififs  had  no  interest  in  the  said  judg- 
ment ;  and  that  the  said  city  did  not  owe,  and  could  not  safely  pay, 
any  part  of  the  same  to  them.  Upon  the  hearing  of  said  cause,  a 
peremptory  writ  was  allowed,  and  from  the  order  allowing  the  same 
the  city  of  Parsons  brings  the  case  here  for  review.     *     *     =i= 

We  come  now  to  the  important  question  involved  in  this  case,  and 
that  is :  Can  the  district  court  compel,  by  writ  of  mandamus,  the 
levying  of  a  tax  by  the  mayor  and  cotmcil  of  a  city  of  the  secon4 
class  to  provide  the  necessary  funds  for  the  payment  of  a  judgment 
rendered  against  said  city  in  an  action  for  damages  occasioned  by  the 
negligence  of  said  city?  While  we  are  of  the  opinion  in  this  case 
that  plaintiffs  in  error  are  hardly  in  position,  under  their  answer  to 

1  For  discussion  of  principles,  see  Cooley,  Mun.  Corp.  §  156. 

2  Part  of  tlie  opinion  is  omitted. 


MANDAMUS  345 

the  writ,  to  raise  this  question,  we  are  not  willing  to  decide  that  thev 
are  not,  and  the  question  is  one  of  considerable  importance  to  the 
state  at  large,  and  ought  to  be  squarely  considered.  It  is  claimed  b\ 
counsel  for  plaintififs  in  error  that  the  only  method  of  collecting  such 
a  judgment  against  a  city  of  the  second  class  in  this  state  is  bv  exe- 
cution, and  counsel  relies  to  support  that  proposition  upon  the  case 
of  City  of  Independence  v.  Trouvalle,  supra  [15  Kan.  70].  In  that 
case  an  action  was  brought  against  the  city  for  services  performed  bv 
the  marshal  under  an  ordinance  relating  to  the  killing  of  dogs,  and  a 
judgment  was  obtained  against  the  city,  and  execution  awarded.  The 
question  of  the  right  to  issue  execution  was  not  the  main  point  in 
issue,  although  it  was  argued  in  the  supreme  court.  Valentine,  J., 
in  delivering  the  opinion  of  the  court,  says :  "There  seems  to  be  no 
provision  made  by  statute  for  the  collection  of  judgments  against 
cities  of  the  second  class.  If  this  is  so,  then  we  suppose  an  execu- 
tion may  issue  on  such  judgments."  It  does  not  appear  to  be  fully 
decided  by  this  case  whether  there  are  any  provisions  of  our  stat- 
ute for  the  collection  of  judgments,  or  whether  the  issuing  of  an 
execution  is  necessary  or  proper  in  such  a  case.  Both  questions 
seem  to  be  left  in  doubt.  But  in  the  later  cases  of  Switzer  v.  Citv  of 
Wellington,  40  Kan.  250,  19  Pac.  620.  10  Am.  St.  Rep.  196.  and 
National  Bank  of  Ottawa  v.  City  of  Ottawa,  43  Kan.  294,  23  Pac. 
485,  our  supreme  court  has  held  that  a  city  of  the  second  class  was 
not  liable  as  garnishee,  which  is  in  the  nature  of  an  execution. 

The  usual  method  of  collecting  a  judgment  against  a  municipality 
being  by  taxation,  it  must  be  assumed  in  this  case  that  the  only 
way,  if  any,  is  by  the  proper  officials  levying  a  tax  for  that  puri)osc. 
Our  constitution  provides  (article  11,  §  4):  "No  tax  shall  be  levied 
except  in  pursuance  of  law,  which  shall  distinctly  state  the  object 
of  the  same ;  to  which  object  only  such  tax  shall  be  applierl."  Any 
authority,  therefore,  relied  ui)on  to  support  the  position  that  the 
levy  of  a  tax  is  authorized  for  that  purpose,  must  be  either  express 
or  so  clearly  implied  as  not  to  conflict  with  this  constitutional  pro- 
vision. In  his  work  on  Public  Corporations  (volume  2.  §  141S).  Mr. 
Beach  lays  down  the  rule  as  follows:  "Tlumgli  a  mmiicipality  can- 
not exceed  a  limitation  imposed  by  the  legislature,  and  can  only  be 
compelled  to  exercise  the  powers  conferred  »ij)on  it  by  the  laws  of 
the  state,  yet  a  creditor  is  entitled  to  have  the  whoK-  power  of  the 
corporation  exerted  for  the  payment  of  a  judgment;  and.  where  a 
city  council  has  a  discretion  as  to  the  amount  of  tax  which  it  is  au- 
thorized to  levy  for  ordinary  ptirposes.  it  must,  if  necessary,  exercise 
all  the  power  which  it  has  to  pay  a  judgment  obtained  against  the 
municipality."  In  support  of  this  doctrine  are  the  cases  of  Butz 
v.  City  of  Muscatine.  8  Wall.  S7S.  10  T,.  Kd.  490;  Coy  v.  City  Coun- 
cil. 17  Iowa.  1.  85  Am.  Dec.  539;  Com.  v.  City  of  Pittsburgh,  34  Pa. 
St.  496;  Iowa  R.  Land  Co.  v.  Sac  Co.,  39  Iowa,  124. 


34:6  ACTIONS 

It  is  a  violent  presumption  that  our  constitution  and  statutes  have 
left  a  person  without  remedy  for  the  collection  of  a  judgment  ob- 
tained against  a  municipality  where,  as  in  this  case,  there  is  no  show- 
ing that  it  has  any  property  out  of  which  such  judgment  can  be 
made.  In  the  light  of  the  above  authorities,  it  would  seem,  in  the 
absence  of  a  showing  that  the  Council  has  already  levied  the  full 
amount  permitted  by  law  for  general  revenue  purposes,  that  a  levy 
for  this  purpose  might  be  made  under  paragraph  788,  Gen.  St.  1889, 
which,  so  far  as  it  is  applicable,  reads  as  follows:  "To  levy  and 
collect  tax  for  general  revenue  purposes  not  to  exceed  ten  mills  on 
the  dollar  in  any  one  year,  on  all  the  real,  mixed  and  personal  prop- 
erty within  the  limits  of  said  cities,  taxable  according  to  the  laws 
of  the  state.  The  words  "general  revenue  purposes"  certainly  mean 
the  same  as  "ordinary  purposes."  Again,  paragraph  793,  Gen.  St. 
1889,  provides  as  follows :  "The  council  may  appropriate  money 
and  provide  for  the  payment  of  the  debts  and  expenses  of  the  city, 
and  when  necessary  may  provide  for  issuing  bonds  for  the  purpose 
of  funding  any  and  all  indebtedness  now  existing  or  hereafter  creat- 
ed :  provided,  that  said  bonds  shall  be  payable  in  not  less  than  ten 
years,  nor  more  than  twenty  years  from  the  date  of  their  issue,  and 
that  said  bonds  shall  bear  interest  at  a  rate  not  exceeding  ten  per 
cent,  per  annum,  with  interest  coupons  attached,  payable  annually 
or  semi-annually:  and  provided  further,  that  said  bonds  shall  not 
be  issued  for  the  purpose  of  funding  said  indebtedness  of  the  city, 
unless  for  every  dollar  of  the  outstanding  script,  orders,  bonds,  cou- 
pons, judgments  or  other  evidence  of  indebtedness,  the  city  shall  is- 
sue in  exchange  therefor  such  bonds  at  dollar  for  dollar.  The  coun- 
cil shall  levy  taxes  on  all  the  property  in  the  city  in  addition  to  other 
taxes  for  the  payment  of  said  coupons  as  they  become  due,  and  the 
taxes  levied  to  pay  the  same  shall  be  payable  only  in  cash." 

It  seems  clear  to  us  that  the  greater  power  certainly  includes  the 
lesser,  and  that  under  this  section,  which  expressly  provides  that 
the  council  may  appropriate  money  for  the  payment  of  the  debts  and 
the  expenses  of  the  city  including  judgments,  and,  in  so  doing,  may 
even  issue  bonds  of  said  city,  and  then  levy  a  tax  upon  all  the  prop- 
erty in  the  city  for  the  purpose  of  paying  said  bonds  issued  to  pay  a 
judgment,  they  would  certainly  have  the  power  to  levy  the  tax  in 
the  first  instance  to  pay  the  same  judgment.  In  this  case  the  amount 
of  the  demand  against  the  city  has  been  conclusively  fixed  by  judg- 
ment, and  its  proper  authorities  have  refused  to  provide  any  means 
for  the  payment  thereof. 

We  are  of  the  opinion  that  mandamus,  which,  after  judgment,  is 
wholly  in  the  nature  of  an  execution,  was  the  proper  remedy,  and 
that,  under  the  facts  admitted  and  established  in  this  case,  the  ruling 
of  the  district  court  granting  a  peremptory  writ  was  right,  and 
should  therefore  be  upheld.  The  judgment  of  the  district  court  is 
affirmed.     All  the  justices  concurring. 


QUO  WAKRANTO  341 


II.  Quo  Warranto  ' 


OSBORNE  V.  VILLAGE  OF  OAKLAND. 

(Supreme  Court  of  Nebraska,  1896.    40  Neb.  340,  08  N.  W.  500.) 

Action  by  George  Osborne  against  the  village  of  Oakland  and  others. 
From  a  judgment  for  defendants,  plaintiff  appeals. 

NoRVAL,  J.  The  village  of  Oakland  was  incorporated  in  1881, 
since  which  time  the  village  organization  has  been  maintained  without 
any  attempt  to  form  or  perfect  a  city  government,  until  March  14, 
1896,  when  the  board  of  trustees,  both  by  resolution  and  ordinance, 
duly  adopted,  declared  said  village  of  Oakland  to  be  a  city  of  the  sec- 
ond class,  and  the  municipality  was  divided  into  two  wards,  and  the 
boundaries  thereof  defined.  The  board  of  trustees  having  threatened 
to  call  an  election  to  be  held  on  the  first  Tuesday  in  April,  1896,  for 
the  election  of  city  officers,  this  action  was  instituted  to  enjoin  the 
calling  or  holding  of  such  proposed  election.  The  petition  sets  up  the 
foregoing  facts,  and  further  alleges  that  Oakland  contains  less  than 
1,000  inhabitants.  A  denuirrer  to  the  petition  was  sustained,  and  the 
action  dismissed.     Plaintiff  appeals. 

Section  1,  art.  1,  c.  14,  Comp.  St.  1895,  declares  that  "all  cities, 
towns  and  villages  containing  more  than  one  thousand  and  less  than 
twenty-five  thousand  inhabitants,  shall  be  cities  of  the  second  class  and 
be  governed  by  the  provisions  of  this  chapter,  unless  they  shall  adopt  a 
village  government  as  hereinafter  provided."  Hy  the  foregoing  provi- 
sion, each  village  in  this  state  containing  the  population  required  by 
statute  is  a  city  of  the  second  class,  without  any  action  on  the  jiart  of 
the  municipality;  and  it  is  the  duty  of  the  board  of  trustees  to  divide 
the  territory  embraced  therein  into  not  less  than  two  wards,  and  call  an 
election  at  the  proper  time  for  the  election  of  city  ofVioers.  State  v. 
Palmer,  10  Neb.  203,  4  N.  W.  965;  State  v.  llolden.  19  Xeb.  24">.  27 
N.  W.  120;  State  v.  Babcock,  25  Neb.  IW,  41  N.  VV.  654.  It  follows 
that,  if  Oakland  has  a  population  of  over  1,000  inhal)itants,  it  is  a  city 
of  the  second  class ;  otherwise  not. 

It  is  patent  that  the  object  and  purpose  of  this  proccfdnig  >s  to  test 
the  corporate  existence  of  Oakland  as  a  city  of  the  second  class,  and 
the  question  presented  is  whether  injunction  is  the  appropriate  action. 
It  is  a  general  rule,  supported  by  the  decisions  of  this  and  other  slates. 
that  equity  will  iu)t  grant  a  i)arty  relief  by  injiinction  where  he  has  a 
plain  and  adequate  remedy  at  law.  It  is  likewise  a  wcll-establishc*! 
doctrine  in  this  country  that  quo  warranto  is  the  i)ropcr  remedy  lo  in- 

•  For  diseus-Hion  of  iiriiKliiloH,  set'  Cooh-y.  .Mmi.  Cdrp.  |  l.'.T. 


348  ACTIONS 

quire  whether  a  municipal  corporation  was  legally  created,  as  well  as 
to  oust  persons  exercising  the  privileges  and  powers  of  corporate  offi- 
cers when  the  municipal  corporation  has  no  legal  existence.  State  v. 
Uridil,  Z7  Neb.  371,  55  N.  W.  1072;  State  v.  Dimond,  44  Neb.  154, 
62  N.  W.  498;  State  v.  Mote,  48  Neb.  683,  67  N.  W.  810;  High,  Extr. 
Rem.  (3d  Ed.)  §  684. 

An  information  in  the  nature  of  a  quo  warranto,  and  not  a  bill  for 
injunction,  is  the  appropriate  remedy.  In  2  High,  Inj.  §  1261,  it  is 
said :  "Equity  is  averse  to  interference  by  injunction  with  the  forma- 
tion of  local  governments  or  municipalities  in  accordance  with  law; 
and,  where  proceedings  are  being  had  under  the  laws  of  a  state  for  the 
incorporation  of  a  village,  property  owners  within  the  proposed  village 
limits  will  not  be  permitted  to  enjoin  such  organization  because  the  ter- 
ritory in  question  does  not  contain  the  requisite  population,  or  because 
complainants  would  thereby  be  subjected  to  burdens  of  local  govern- 
ment largely  disproportionate  to  the  benefits  accruing  therefrom,  or 
upon  the  grounds  of  informality  in  the  proceedings.  Nor  will  the  re- 
lief be  allowed  in  such  case  upon  the  application  of  the  attorney  gen- 
eral, in  behalf  of  the  people  of  the  state;  and  a  bill  for  an  injunction 
cannot  be  maintained  to  have  declared  null  and  void  proceedings  for 
the  incorporation  of  a  village  under  an  act  of  legislature  for  the  in- 
corporation of  villages,  the  appropriate  remedy  in  such  a  case  being  by 
proceedings  in  the  nature  of  a  quo  warranto."  See  2  Beach,  Inj.  § 
1305;  Willis  v.  Stapels,  30  Hun,  644;  People  v.  Minnerly,  6  Thomp. 
&  C.  (N.  Y.)  318;  People  v.  Clark,  70  N.  Y.  518;  Lane  v.  Morrill,  51 
N.  H.  422. 

Although  it  is  not  sought  to  thwart  the  formation  of  a  city  govern- 
ment for  Oakland,  the  principle  underlying  the  above  authorities  is  de- 
cisive of  the  case  before  us,  since  the  purpose  is  to  prevent  the  election 
of  officers  to  manage  the  aflfairs  of  the  municipality,  on  the  ground 
that  it  has  no  corporate  existence. 

The  decisions  of  this  court  cited  by  plaintiff  do  not  sustain  his  con- 
tention that  injunction  is  the  proper  action.  Doubtless,  an  injunction 
will  lie,  in  a  proper  case,  to  restrain  a  municipal  officer  from  perform- 
ing an  act  in  violation  of  law ;  but  that  is  no  reason  why  an  injunction 
against  such  an  officer  may  be  resorted  to  when  the  sole  object  or  pur- 
pose to  be  accomplished  is  to  test  the  validity  of  the  corporation.  In 
the  one  case,  a  remedy  at  law  is  afforded ;  while,  in  the  other,  equity 
alone  can  grant  speedy  and  adequate  relief. 

It  is  claimed  that  equity  will  enjoin  the  action  of  municipal  officers 
from  acting  in  excess  of  the  corporate  power.  Undoubtedly,  as  a  gen- 
eral rule,  this  is  true,  but,  if  Oakland  contains  more  than  1,000  inhab- 
itants, it  is  an  incorporated  city,  and  it  was  the  duty  of  the  defendant 
to  call  an  election  for  city  officers.  To  determine  that  the  defendants 
were  about  to  proceed  unlawfully  in  calling  the  proposed  election  would 


CERTIORARI  340 


require  us  to  judicially  ascertain  whether  Oakland  is  a  village  or  city 
and  that  cannot  be  done  in  this  form  of  action.  The  judgment  dis- 
missing the  petition  is  right,  and  it  is  afitirmed.    Affirmed. 


III.  Certiorari  * 


In  re  WILSON. 
(Supreme  Court  of  Minnesota,  18S4.    32  Minn.  145,  19  X.  W.  72,3.) 

Application  for  writ  of  certiorari  to  determine  the  validity  of  an  or- 
dinance passed  by  the  city  council  of  the  city  of  Minneapolis  regulating 
the  sale  of  intoxicating  liquors. 

Mitchell,  J.5  *  *  *  Originally,  and  in  English  practice,  a 
certiorari  was  an  original  writ,  issuing  out  of  the  court  of  chancery  or 
king's  bench,  directed  to  the  judges  or  officers  of  an  inferior  court, 
commanding  them  to  certify  or  return  the  records  or  proceedings  in  a 
cause  before  them,  for  the  purpose  of  a  judicial  review  of  their  action. 
In  the  United  States  the  office  of  this  writ  has  been  e.xtcnded,  and  its 
application  is  not  now  confined  to  the  decisions  of  courts,  properly  so 
called,  but  is  also  used  to  review  the  proceedings  of  sj)ccial  tril)unals. 
commissioners,  magistrates,  and  officers  of  municipal  coriKjralions  ex- 
ercising judicial  powers,  affecting  the  rights  or  property  of  the  citizen, 
when  they  act  in  a  summary  way,  or  in  a  new  course  different  from 
that  of  the  common  law. 

The  acts  of  municipal  corporations,  or  rather  of  municipal  officers, 
are  divided  into  legislative,  ministerial,  and  judicial.  ( )f  course,  mu- 
nicipal officers  do  not,  strictly  speaking,  possess  judicial  powers :  but 
they  do  possess  certain  powers,  in  the  exercise  of  which  they  perform 
acts  which,  both  from  the  nature  of  the  acts  themselves  and  their  effect 
upon  the  rights  or  i)ropcrty  of  the  citizen,  bear  a  close  analogy  to  the 
acts  of  courts,  anrl  are,  therefore,  termed  "judicial."  or  "(|uasi  judi- 
cial," to  distinguish  them  from  those  th;it  are  merely  minislcrial  or 
legislative.  The  authorities  arc  almost  uniform  in  holding  tb.it  mere 
legislative  or  ministerial  acts,  as  such,  of  nuinicipal  officers  cann()t  he 
reviewed  on  certif)rari ;  that  only  those  which  arc  judicial  can  bo  thus 
reviewed.  The  courts  are  not  always  agreed  as  to  what  acts  arc  judi- 
cial. Some  have  gone  a  great  length  in  holding  certain  acts  judicial, 
which,  on  principle,  it  would  be  very  tlifficult  to  place  under  that  hca<l. 

*  For  dlHCiiHslon  of  iirinf||»)r»,  h«h?  rfinlpy,  ^f^ul.  f'orp.  I  158. 

B  Part  of  the  opinion  la  ouilttrd  nn<l  tlio  Mlatruicnt  of  fiictn  1h  n'wrftton. 


350  ACTIONS 

But  in  every  case  which  we  have  found  where  a  court  has  assumed  the 
right  to  review  the  acts  of  municipal  officers  on  certiorari,  either  the 
act  itself  was  judicial  in  its  nature,  or  else  its  validity  was  involved  in 
judicial  proceedings  which  were  the  subject  of  review.  The  following 
are  instances  of  acts  of  municipal  officers  which  have  been  held  judi- 
cial, and  hence  directly  subject  to  review  on  certiorari:  Laying  out  a 
street  or  highway  across  private  property,  and  assessing  the  owners' 
damages  therefor;  making  special  assessments  against  a  man's  prop- 
erty to  pay  for  improving  or  paving  a  street;  assessing  damages 
for  the  destruction  of  buildings  to  prevent  the  spread  of  fire;  de- 
termining contested  election  cases.  All  these  bear  more  or  less  anal- 
ogy to  the  judicial  acts  oi  courts,  properly  so  called.  But  we  doubt 
whether  in  any  case  it  has  ever  been  held  that  a  purely  legislative  act, 
as  such,  can  be  reviewed  on  certiorari. 

Cases  from  New  Jersey  have  been  cited  as  going  that  far.  The 
courts  of  that  state  have  probably  extended  the  application  of  this  writ 
further  than  those  of  any  other  state ;  but  our  attention  has  not  been 
called  to  any  case,  even  from  that  state,  which  goes  as  far  as  counsel 
claim.  The  cases  of  Camden  v.  Mulford,  26  N.  J.  Law,  49,  and  Carron 
V.  Martin,  26  N.  J.  Law,  594,  69  Am.  Dec.  584,  cited  by  petitioner,  do 
not  go  to  any  such  length.  All  that  was  decided  in  the  first  case  was 
that  an  ordinance  authorizing  a  new  improvement  to  be  made,  such  as 
opening  and  paving  new  streets,  and  constructing  sewers,  by  which 
the  property  of  specific  individuals  may  be  directly  taxed  to  defray  the 
expense,  was  a  judicial  act.  In  the  second  case  it  was  merely  held  that 
the  supreme  court  had  a  right  to  review  on  certiorari  the  proceedings 
of  corporations  that  do  acts  affecting  the  rights  and  property  of  indi- 
viduals, which  are  judicial  or  quasi  judicial  in  their  nature. 

Dill.  Mun.  Corp.  §  926,  is  also  cited  as  authority  that  courts  will  on 
certiorari  examine  the  proceedings  of  municipal  corporations,  whether 
legislative  or  judicial.  But  that  learned  author  does  not  say  so.  He  is 
simply  stating  the  rule  that  certiorari  will  lie  tO'  review  the  proceedings 
of  such  corporations.  But  that  he  did  not  intend  to  convey  the  idea 
that  mere  legislative  or  ministerial  acts  could  be  thus  reviewed  is 
evident,  for  at  least  two  reasons :  First,  not  a  single  authority  cited 
in  support  of  the  text  sustains  such  a  proposition.  Second,  the  au- 
thor immediately  adds,  by  way  of  illustration :  "Thus  if  no  appeal  or 
other  mode  of  review  be  given,  and  if  there  be  no  statute  to  the  con- 
trary, the  legality  of  convictions  in  municipal  courts  will  be  reviewed 
on  certiorari.  So,  under  the  same  circumstances,  and  in  the  same  way, 
the  proceedings  of  municipal  corporations  in  opening  streets,  in  making 
local  assessments,  in  levying  taxes,  in  contested  election  cases,  and  the 
like,  will  be  examined  and  reviewed  to  ascertain  whether  they  are  regu- 
lar and  legal,"  all  of  which,  it  will  be  found  from  an  examination  of 
the  cases  cited,  have  been  held  to  be  judicial  acts. 


INJUNCTION  351 

To  hold  that  any  mere  legislative  act  of  a  municipal  corporation  could 
be  thus  directly  reviewed  on  certiorari  would  not  only  be  a  radical  de- 
parture from  all  precedent,  but  extremely  onerous  upon  the  courts  and 
vexatious  to  municipal  officers.  There  is  no  more  reason  whv  the  va- 
lidity of  a  legislative  act  of  a  city  council  should  be  thus  raised  in  ad- 
vance of  actual  litigation  between  parties,  involving  the  question,  than 
there  is  in  the  case  of  an  act  of  the  legislature.  That  the  ordinance  un- 
der consideration  is  a  legislative  act  needs  no  argument.  The  sugges- 
tion that  it  is  judicial,  because  the  city  council  must  have  exercised  their 
discretion  in  passing  it,  is  without  force.  Every  legislative  act  calls 
for  the  exercise  of  discretion  as  to  its  expediency  and  propriety.  Writ 
denied. 


IV,  Injunction  • 


INTERNATIONAL  TRADING  STAMP  CO.  v.   CITY  OF 

MEMPHIS. 

(Supreme  Court  of  Tennessee,  1898.    101  Tenn.  181,  47  S.  W.  VM.) 

Application  of  the  International  Trading-Stamp  Company  and  others 
against  the  city  of  Memphis  and  the  city  council  for  an  injunction. 
The  writ  was  granted ;  a  demurrer  to  the  bill  was  overruled ;  and  a 
motion  to  dissolve  the  injunction  was  refused.  On  failure  of  com- 
plainants to  furnish  increased  bond,  the  injunction  was  dissolved. 
From  the  decree  overruling  the  demurrer,  defendants  ap])cal. 

WiLKiCS,  J.  The  complainant  stam]>  company  and  certain  mer- 
chants doing  business  in  Memphis  filed  this  bill  against  the  city  coun- 
cil and  city  of  Memphis  seeking  to  enjoin  the  passage  of  an  ordinance 
pending  before  the  council  imposing  a  privilege  tax  upon  the  company 
of  $500,  and  upon  each  merchant  of  $250,  for  engaging  in  what  is 
styled  the  "trading-stamp  l)usiness,"  and  declaring  the  doing  of  such 
business  without  license  a  misdemeanor  ui)on  the  part  of  the  company 
and  the  merchants.  An  injunction  was  granted,  and  served  upon  the 
members  of  the  council.  The  defendants  moved  to  dissolve  the  in- 
junction, and  also  dennirred  to  the  bill  on  various  grouiuls.  The  chan- 
cellor overruled  the  demurrer,  and  refused  to  {|is';(»Ive  the  injunction. 
On  motion,  the  i)enalty  of  the  bond  was  increased  to  $1<).(»<)().  and 
complainants  declined  to  give  it,  and  the  injunction  was  dissolved. 
From  the  decree  overruling  the  demurrer,  the  chancellor  granted  an 
appeal  to  the  defendants,  and  they  have  assigned  errors. 

•  For  dlHrusHinii  of  priiifiplcs.  wc  CuoU-y.  Mnn    Ci.rp.  f  101. 


352  ACTIONS 

While  the  errors  assigned  are  eight  in  number,  only  one  question 
is  presented,  and  that  is  whether  a  court  of  chancery  should  enjoin 
a  city  council  from  passing  such  an  ordinance  under  its  legislative 
power.  It  is  conceded  that  a  court  of  chancery  may  restrain  the  en- 
forcement of  an  illegal  or  ultra  vires  ordinance  after  it  is  passed. 
Bradley  v.  Commissioners,  2  Humph.  428,  2,7  Am.  Dec.  563;  Lynn 
V.  Polk,  8  Lea,  127 ;  Public  Ledger  Co.  v.  City  of  Memphis,  93  Tenn. 
81,  23  S.  W.  51 ;  Deems  v.  Mayor,  etc.,  of  Bahimore,  80  Md.  164,  30 
Atl.  648,  26  L.  R.  A.  541,  45  Am.  St.  Rep.  339. 

It  is  insisted  that  this  ordinance,  if  passed,  would  be  ultra  vires 
and  void,  because  it  attempts  to  create  a  privilege,  and  tax  it,  and  make 
its  pursuit  without  payment  of  tax  a  misdemeanor,  when  the  legisla- 
ture has  not  so  provided.  The  contention  is  that  the  legislature  alone 
can  create  a  privilege,  and  authorize  its  taxation,  and  that  a  municipal 
corporation  cannot  make  any  occupation  a  privilege,  nor  impose  a  tax 
upon  it,  unless  it  has  first  been  so  declared  by  the  legislature.  This, 
we  think,  is  correct.  Mayor,  etc.,  v.  Althrop,  5  Cold.  554,  558,  559; 
Fulgum  V.  Mayor,  etc.,  8  Lea,  640. 

It  is  insisted  that  the  legislature  has  not  made  the  trading-stamp 
business  a  privilege,  nor  imposed  a  tax  upon  it,  and  an  attempt  to 
do  so  by  the  city  council  of  Memphis  would  be  an  act  ultra  vires  and 
beyond  its  power,  and  that  such  action  may  be  enjoined  to  prevent 
irreparable  mischief  and  damage.  It  appears  that  the  legislature,  at 
its  special  session  in  1898,  did  pass  a  bill  declaring  that  trading-stamp 
agencies  and  merchants  doing  business  by  or  through  such  agencies 
should  pay  a  tax  for  such  privilege ;  and  the  bill  is  published  as  an 
act  of  the  extra  session  of  1898.  But  it  appears  from  the  journals 
of  the  house  that  the  bill  was  vetoed  by  the  governor  as  unconstitu- 
tional, and  was  not  passed  over  his  veto ;  so  that  it  has  no  force  or 
vitality,  and  is  improperly  published  as  an  existing  law. 

It  is  next  contended  that  under  section  4,  c.  84,  Acts  1893,  the  city 
of  Memphis  was  empowered  to  levy  privilege  taxes,  and  hence  the 
legislative  council  was  acting  within  the  scope  of  its  authority.  This 
section  is  as  follows:  "Sec.  4.  Be  it  further  enacted,  that  from  and 
including  the  year  1893,  power  is  hereby  conferred  upon  the  legislative 
council  of  the  city  of  Memphis  to  levy  and  impose  all  necessary  taxes 
for  the  support  of  the  government  of  said  city.  In  the  exercise  of 
said  power  the  legislative  council  shall  always  levy  and  impose  a  suffi- 
cient tax  to  pay  the  interest  of  the  outstanding  bonds  of  said  city,  and 
to  provide  a  sinking  fund  for  the  retirement  of  the  bonds  themselves, 
as  required  by  the  law  under  which  said  bonds  were  issued.  *  *  * 
The  power  conferred  thus  to  impose  taxes  shall  apply  to  every  object 
and  subject  of  taxation  within  the  corporate  limits  of  the  city  of 
Memphis.  Said  power  shall  extend  to  every  species  of  property  and 
to  privileges  and  wharfage  dues,  and  all  other  things  upon  which 
the  legislature  or  the  city  has  heretofore  laid  taxes,  rates  or  assess- 


INJUNCTION  353 

ments  for  the  support  and  maintenance  of  said  government,  the  ob- 
ject being  to  provide  for  the  exercise  of  the  power  herein  conferred 
under  the  restrictions  named  as  fully  as  the  same  could  be  exercised 
if  the  legislature  and  not  the  city  were  exercising  the  power." 

It  is  evident  that  the  power  conferred  by  this  act  was  to  tax  such 
property,  privileges,  and  other  things  as  had  been  theretofore  taxed, 
or  thereafter  ordered  to  be  taxed,  by  the  legislature,  or  the  city  under 
authority  of  the  legislature ;  but  it  did  not  confer  the  power  to  create 
new  privileges,  and  assess  taxes  for  their  exercise,  and,  as  we  have 
already  seen,  no  such  power  exists  independent  of  legislative  author- 
ity. It  clearly  appears,  therefore,  that  the  contemplated  action  of  the 
council  was  illegal  and  ultra  vires ;  and  the  question  recurs,  should 
complainants  be  allowed  to  enjoin  the  enactment  of  the  ordinance, 
or  take  their  remedy  to  prevent  its  enforcement  after  it  is  passed? 
In  the  case  of  Public  Ledger  Co.  v.  City  of  Memphis,  93  Tenn.  81, 
23  S.  W.  51,  this  court  said:  "The  remedy  by  injunction  to  prevent 
municipal  corporate  action  is  one  not  lightly  to  be  applied.  If  the 
matter  complained  of  is  one  merely  of  simple  contract,  of  no  serious 
moment,  and  which  may  be  defeated  by  resistance  to  its  enforcement, 
even  by  the  body  making  it,  there  is  no  sufficient  ground  for  the  use 
of  the  writ  at  the  instance  of  the  taxpayer."  But  there  is  a  broad 
distinction  between  the  exercise  of  legislative  authority  when  the  power 
or  jurisdiction  to  exercise  it  has  been  conferred  by  law  and  an  attempt 
to  legislate  upon  matters  clearly  ultra  vires.  Where  there  is  power 
and  authority  conferred  by  law  to  do  any  legislative  act,  the  di.scre- 
tion  of  the  council  cannot  be  controlled  ;  but,  when  there  is  no  leg- 
islative authority  or  power,  injunction  will  lie.  A  municipal  cor- 
poration has  no  discretion  to  do  any  act  which  is  clearly  illegal  and 
beyond  its  i)ower.  Des  Moines  Gas  Co.  v.  City  of  Des  Moines,  44 
Iowa,  505,  24  Am.  Rep.  756;  Roberts  v.  City  of  Louisville,  92  Kv. 
95,  17  S.  W.  216,  13  L.  R.  A.  844;  High.  Inj.  §  1241.  and  cases  cited  ; 
People  V.  Dwver,  90  N.  Y.  402;  Murphy  v.  East  Porilaml  (C.  C.) 
42  Fed.  308. 

It  is  said,  however,  conceding  that  injunction  will  lie,  it  should  not 
be  resorted  to  so  long  as  the  complainant  has  other  suOicicnt  renie(iies. 
such  as  an  actir)n  f(jr  damages,  or  an  action  to  enjoin  the  cnforcenjent 
of  the  orflinance  when  passed;  and  this  is  undoubtedly  so.  The  leg- 
islation proposed  is  to  impose  a  tax  of  $500  upon  (he  stamp  comi)any. 
and  $250  on  each  merchant  using  the  stamps,  and  to  make  the  vio- 
lation of  the  ordinance  a  misdemeanor.  It  is  alleged  there  arc  a  nutii- 
ber  of  these  merchants, — 145  or  more.  With  these  merchants  the 
company  has  a  contract  for  a  year,  which  nnist  be  breached  if  the 
law  is  observed,  and  thus  ground  will  be  laid  for  a  large  number  of 
suits.  Moreover,  the  use  of  the  stamps  being  ma<Ir  a  misdemeanor, 
the  merchants  would  each  be  liable  in  a  criminal  action  if  he  did  not 
break  the  contract.  Kach  breach  would  i)crhaps  be  a  separate  dis- 
CooLEY  Ca8Kh  Mi;.\.C. — 2^ 


354  ACTIONS 

tinct  offense  for  which  the  penalty  could  be  demanded,  at  least  until 
the  question  was  settled  on  appeal.  To  restrain  the  enforcement,  an 
action  would  have  to  be  brought  by  each  person  liable ;  so  that  we 
think  a  proper  case  is  made  out  to  enjoin  the  passage  of  the  act,  and 
the  decree  of  the  court  below  is  affirmed,  with  costs. 


OSBORNE  V.  VILLAGE  OF  OAKLAND. 
(Supreme  Court  of  Nebraska,  1896.     49  Neb.  340,  68  N.  W.  506.) 
See  ante,  p.  347,  for  a  report  of  the  case. 


QDASl  CORPORATIONS  355 


QUASI  CORPORATIONS 
I.  Distinguishing  Elements  ^ 


BOARD  OF  COM'RS  OF  HAMILTON  COUNTY  v.  MIGHELS. 

(Supreme  Court  of  Ohio,  1857.     7  Ohio   St.  109.) 
See  ante,  p.  4,  for  a  report  of  the  case. 


ASKEW  V.  HALE  COUNTY. 
(Supreme  Court  of  Alabama,  1875.     54  Ala.  039,  25  Am.  Rep.  730.) 
See  below,  for  a  report  of  the  case. 


MILLS  V.  WILLIAMS. 
(Supreme  Court  of  North  Carolina,  1850.    33  N.  C.  55S.) 
See  ante,  p.  1,  for  a  report  of  the  case. 


II.  Counties  ' 


ASKEW  V.  HALE  COUNTY. 

(Supreme  Court  of  Alabama,  1875.     .Il  Ala.  0.'{9.  2.".  Am.   U.-p.  731).) 

BrickELL,  C.  J.^  The  argument  in  support  of  the  first  and  ihinl 
counts,  is  the  same  substantially,  and  may  be  thus  stated:  Counties 
are  municipal  corporations,  charged  with  the  ministerial  duty  of  keep- 
ing in  repair  the  public  roads  and  bridges,  sd  that  they  shall  be  safe 
and  commodious  ways,  for  the  passage  of  the  public.  The  law  im- 
posing the  duty,  for  misfeasance  or  lujnfcasance  in  its  performance, 
from  which  injury  ensues  to  an  individual,  an  action  will  lie.  In 
supjKjrt  of  the  argument  reference  is  made  to  many  of  ihc  numerous 
authorities,  which  bold  municipal  corporations  enjoined  to  keep  streets, 
and   bridges,  parts  of   the  streets,   in    rcp.iir.  and   supplied   with   the 

1  For  (liscuHsion  of  i)riii'liil««H,  wu  Cnnlfy,  .Mnn.  Cnri).  ||  I'Vl  UVk 

2  For  (ll.scussloii  of  iirimlpIoM,  hw  Cooley.  Mun.  Corp.  |  10(J. 

3  Part  of  the  opinion  Ih  omittfd. 


356  QUASI   CORPORATIONS 

means  of  performing  the  duty,  are  liable  fof  injuries  resulting  from 
the  non-performance,  or  the  unskillful  and  negligent  manner  of  per- 
formance. 

A  radical  error,  fatal  to  the  argument,  is  in  treating  the  county  as 
a  municipal  corporation.  It  has  corporate  «"haracteristics,  but  it  is  not 
a  municipal  corporation,  though  often  so  termed.  It  is  an  involuntary 
political  or  civil  division  of  the  state,  created  by  statute  to  aid  in  the 
administration  of  government.  It  is  in  its  very  nature,  character  and 
purposes,  public,  and  a  governmental  agency,  or  auxiliary,  rather  than 
a  corporation.  Whatever  of  power  it  possesses,  or  whatever  of  duty 
it  is  required  to  perform,  originates  in  the  statute  creating  it.  It  is 
created  mainly  for  the  interest,  advantage,  and  convenience  of  the  peo- 
ple residing  within  its  territorial  boundaries,  and  the  better  to  enable 
the  government  to  extend  to  them  the  protection  to  which  they  are 
entitled,  and  the  more  beneficently  to  exercise  over  them  its  powers. 
All  the  powers  with  which  the  county  is  entrusted,  are  the  powers  of 
the  state,  and  all  the  duties  with  which  they  are  charged,  are  the  duties 
of  the  state.  If  these  were  not  committed  to  the  county,  they  must 
be  conferred  on  some  other  governmental  agency.  The  character  of 
these  powers,  so  far  as  counties  in  this  state  are  concerned,  are  all 
for  the  purposes  of  civil  and  political  organization.  The  levy  and  col- 
lection of  taxes,  the  care  of  the  poor,  the  supervision  and  control  of 
roads,  bridges  and  ferries,  the  compensation  of  jurors,  attending  the 
state  courts,  and  the  supervision  of  convicts  sentenced  to  hard  labor, 
as  a  punishment,  for  many  violations  of  the  criminal  law,  it  is  the 
general  policy  of  the  state  to  entrust  to  the  several  counties,  and  are 
all  but  parts  of  the  power  and  duty  of  the  state.  These  powers  could 
be  withdrawn  by  the  state,  in  the  exercise  of  its  sovereign  will,  and 
other  instrumentalities  or  agencies  established,  and  clothed  with  them. 
Soper  v.  Henry  County,  26  Iowa,  267 ;  Hamilton  County  v.  Mighels, 
7  Ohio  St.  109;  Eastman  v.  Meredith,  36  N.  H.  284,  72  Am.  Dec. 
302;    1  Dill.  Mun.  Corp.  §§  10-39.     *     *     * 


BOARD  OF  COM'RS  OF  HAMILTON  COUNTY  v.  MIGHELS. 

(Supreme  Court  of  Ohio,  1857.     7  Ohio  St.  109.) 
See  ante,  p.  4,  for  a  report  of  the  case. 


MILLS  V.  WILLIAMS. 

(Supreme  Court  of  North  Carolina,  1850.    33  N.  C.  558.) 
See  ante,  p.  1,  for  a  report  of  the  case. 


TORTS  357 


III.  Torts* 


MARKEY  V.  QUEENS  COUNTY. 

(Court  of  Appeals  of  New  York,  1S9S.     154  X.  Y.  675,  40  X.  E.  71.  r>0  L.  R. 

A.  40.) 

Action  by  Kate  Markey,  administratrix  of  Hugh  Markcy,  deceased, 
against  the  county  of  Queens  and  the  city  of  Brooklyn.  From  a 
judgment  of  the  appellate  division  (9  App.Div.  627,  41  X.  Y.  Supp. 
1123),  afifirming  a  judgment  sustaining  a  demurrer,  plaiiUifT  appeals. 

Gkav,  J.'^  Plaintifif's  intestate  lost  his  life  through  the  breaking 
down  of  a  bridge  over  Newtown  creek,  and  this  action  was  brought  to 
recover  damages  of  the  defendants,  the  county  of  Queens  and  the  city 
of  Brooklyn,  for  their  alleged  negligence  with  respect  to  the  con- 
dition of  the  bridge.  A  bridge  had  long  existed  over  Newtown 
creek,  which  was  the  boundary  line  between  the  C(iunties  of  Kings 
and  Queens;  and,  pursuant  to  an  act  passed  in  1892,  the  boartis  of 
supervisors  of  these  counties  had  made  a  contract  for  its  reconstruc- 
tion. Meanwhile,  a  temporary  foot  bridge,  for  the  accommodation 
of  foot  passengers  during  the  progress  of  the  work,  was  erected, 
and  made  use  of  by  the  public.  The  plaintiff  alleges  tlial  this  tem- 
porary bridge  was  insuf^cient,  out  of  repair,  inadecjuate  for  its  pur- 
poses, and  not  calculated  to  bear  the  strain  to  which  it  would  be 
subjected,  and  that  the  defendants  were  negligent  in  ]HTmitting  its 
use  by  the  public  in  that  condition.  The  county  of  Kings,  under 
chapter  954,  Laws  1895,  became  absorbed  on  January  1,  18' '6,  into 
the  city  of  Brooklyn,  which  was  therefore  made  a  defendant.  The 
county  of  Queens,  the  other  defendant,  demurred  to  the  com|)laint. 
for  not  stating  facts  sufficient  to  constitute  a  cause  of  action  against 
it.  The  demurrer  was  sustained  at  the  special  term  and  at  the  ap- 
pellate division  of  the  supreme  court,  in  the  Second  judicial  <le|>arl- 
ment,  which  latter  court  has  certified  the  case  to  us.  as  involving  a 
question  of  law  which  ought  to  be  reviewed  by  this  C(»urt.  That 
question,  broadly,  is  whether,  by  any  rule  of  law,  as  established  in 
this  state,  a  county  may  be  held  liable  at  the  suit  of  a  private  in- 
dividual who  has  received  personal  injuries  from  a  defective  bridge. 
with  the  maintenance  of  which  the  comity  was  chargeable. 

The  question  is  one  of  consideralile  interest,  and.  beyond  the  gen- 
eral discussion,  demands  an  interpretation  of  the  provisions  of  the 
county  law  of  18'^2  (Laws  1802,  c.  C)H(\),  the  second  section  of  which 
declares  the  county  to  be  a  municipal  corporation.     The  provision 

«  For  (lisnisslon  of  princlftlcH,  nee  Cooloy.  Mtin.  Corp.  |i  HH.  17.1. 
■  I'iut   nf   tliis  <ii»iiiliiii  mill  nil  of  the  (HHHciifliig  iiifinuriitultiiii  of  Uniilelt 
iiiid  .M.-irliii,  .I.T.,  are  (jiiilttcd. 


358  QUASI   CORPORATIONS 

is  as  follows:  "A  county  is  a  municipal  corporation,  comprising- 
the  inhabitants  within  its  boundaries,  and  formed  for  the  purpose  of 
exercising  the  powers  and  discharging  the  duties  of  local  govern- 
ment, and  the  administration  of  public  affairs  conferred  upon  it  by 
law."  By  the  third  section,  it  is  provided  that:  "An  action  *  *  * 
to  enforce  any  liability  created,  or  duty  enjoined  upon  it,  or  upon 
any  of  its  officers  or  agents  for  which  it  is  liable,  or  to  recover  dam- 
ages for  any  injury  to  any  property  or  rights  for  which  it  is  liable, 
shall  be  in  the  name  of  the  county."  It  is  argued  that  the  county, 
being  thus  declared  a  municipal  corporation  and  being  charged  by 
law  with  the  duty  of  maintaining  the  bridge,  is  made  subject  to  those 
liabilities  which  it  was  understood  the  law  attached  to  that  class  of 
corporations  for  breaches  of  duty.  It  is  urged  that  as  counties  never 
were  known,  before  this  statute,  as  municipal  corporations,  the  legis- 
lature, in  its  enactment,  must  have  intended  that  they  should  be 
treated  as  upon  a  par  with  cities,  when  engaged  in  similar  transac- 
tions, and  that  this  proposition  should  be  sustained  from  the  point 
of  view  of  public  interest. 

In  considering  the  question  before  us,  we  must  not  fail  to  observe 
that  the  language  of  section  3,  above  quoted,  seems  to  import  no 
further  liability  than  that  which  was  then  existing.  The  only  portion 
of  that  section  which  is  material  to  the  case  is  that  which  provides 
for  an  action  "to  recover  damages  for  any  injury  to  any  property  or 
rights  for  which  it  is  hable."  In  other  words,  what  the  legislature 
appears  to  have  done  was  to  provide  that,  where  the  county  is  liable 
for  an  injury,  the  action  shall  be  in  the  name  of  the  county.  If,  prior 
to  the  passage  of  the  county  law,  the  county  was  not  liable  for  such 
an  injury  as  was  sustained  in  the  present  case,  did  it  become  .so  there- 
after, by  implication  from  the  language  of  the  second  section,  as  ar- 
gued for  the  appellant,  in  the  use  of  the  words  "municipal  corpora- 
tion," or  by  reason  of  the  third  section? 

To  a  clear  understanding  of  the  question,  it  may  be  well  to  consid- 
er what  was  the  legal  status  of  counties  of  this  state,  and  then,  inci- 
dentally, what  is  that  of  a  municipal  corporation  proper,  such  as  an 
incorporated  city.  The  civil  divisions  of  a  state  into  counties  had' 
their  origin  in  England,  where,  preceding  the  organization  of  the 
kingdom  itself,  they  were  thereafter  continued,  from  recognized 
necessities  in  government,  as  other  countries  had  their  departments 
or  their  provinces.  In  such  divisions,  it  was  found  that  the  pur- 
poses of  local  government  and  of  the  administration  of  justice  were 
promoted.  Differing  from  England  in  their  origin,  in  this  country 
they  were  first  created  by  the  legislatures  of  the  various  colonies, 
and  subsequently  by  the  states  of  the  Union.  They  were  invested 
with  such  corporate  attributes  as  were  essential  to  a  proper  perform- 
ance of  the  duties  of  local  government.  They  were,  in  effect,  sub- 
divisions of  the  governed  territory,  established  for  the  more  conven- 
ient administration  of  government  and  having  such  powers  as  were 


TORTS  359 

necessary  to  be  exercised  for  the  Avelfare,  advantage,  and  protection 
of  the  pul)lic  within  their  boundaries.  While  in  the  people  resided  the 
sovereign  right  to  declare  the  general  mode  of  their  government,  it 
was  the  appropriate  duty  of  their  legislative  body  to  so  arrange  the 
territory  of  the  state  into  civil  divisions,  and  to  so  apportion  among 
them  governmental  duties,  as  would  best  conduce  to  the  advantage 
of  its  citizens. 

By  the  common  law  of  England,  a  county,  though  sometimes  re- 
garded as  a  quasi  corporation,  could  not  be  subjected  to  a  civil  action 
for  a  breach  of  its  corporate  duty  unless  such  an  action  was  ex- 
pressly given  by  statute.  The  duty  of  maintaining  and  repairing 
bridges  belonged  to  it,  but  the  only  remedy  for  a  breach  of  that  duty 
was  by  presentment  or  indictment.  An  unsafe  condition  of  a  high- 
way, or  a  bridge  as  a  part  of  the  highway,  was  regarded  as  a  sub- 
ject of  a  popular  action,  and  not  of  a  private  action.  In  Russell  v. 
Men  of  Devon,  2  Term  R.  667,  which  was  an  action  by  an  individual 
against  the  inhabitants  of  a  county  for  an  injury  sustained  through 
the  defective  condition  of  a  county  bridge,  it  was  held  that  they  were 
not  such  a  corporation,  or  quasi  corporation,  against  whom  such  an 
action  could  be  maintained.  It  was  reasoned  that,  while  the  inhabit- 
ants of  the  county  might  be  a  corporation  for  some  purposes,  no 
statute  had  authorized  such  an  action,  and  that  the  action  would  be 
one  against  the  public. 

The  authority  of  that  case,  as  settling  the  rule  at  common  law 
that  no  civil  action  could  be  maintained  for  an  individual  injury  in 
consequence  of  the  breach  of  a  public  duty  on  the  part  of  the  in- 
habitants of  a  county,  has  been  repeatedly  recognized  in  England  and 
in  this  country.  I  may  refer  in  particular  tt)  the  case  of  Harllclt  v. 
Crozier,  in  this  state  (17  Johns.  439,  8  Am.  Dec.  428)  and  to  the 
cases  in  Massachusetts  of  Riddle  v.  Proprietors,  etc..  7  Mass.  1()9, 
5  Am.  Dec.  35,  and  Mower  v.  Leicester,  9  Mass.  247,  6  Am.  Dec.  63. 
and  to  the  very  thorough  discussion  of  the  cases  in  I-'ngland  and  in 
the  United  States,  which  will  be  found  in  Hill  v.  City  of  Hoston.  122 
Mass.  344,  23  Am.  Rep.  332,  and  in  chapter  23.  2  Dill.  Mun.  Corp. 
I  think  it,  however,  sufficient  to  confine  the  prrscnt  discussion  to  what 
the  statutes  and  decisions  of  this  state  retpiire  us  t<>  h.>\>\  \\\h,i\  \Ur 
qucstifjn. 

In  this  state,  its  division  into  counties  or  sections  for  the  piirposes 
of  local  government  was  but  a  continuance  of  a  method  which,  while 
a  colony,  it  had  adoi)ted  from  h'ngland.  I'y  the  c(»nstit»iti()n  of  the 
state,  it  was  provided  that  such  jiarts  of  the  conuntjii  law  as  formed 
the  law  of  the  colony  of  New  York  were  retained  as  the  law  of  the 
state.  If,  under  the  common  law,  counties  could  not  be  stibjcctcd  to 
private  actions  for  the  results  of  acts  done  in  the  perform  i  gov- 

ernmental duties,  then  it  shouhl  follow  that  c.mntirs  (u  im-^  state 
could  not  become  liable  to  such  actifMis,  unless  the  common  law  in 
that  respect  has  1)<  <n  clianr<fl  bv  statute.     Where  a  prineipic  of  the 


3G0  QUASI   CORPORATIONS 

common  law  has  entered  into  our  form  of  government,  it  is  control- 
ling, until  by  legislation,  express  in  its  terms,  it  is  modified,  or  nega- 
tived by  the  substitution  of  a  new  declaration  upon  the  subject.  The 
only  statute  for  which  that  could  be  claimed  is  the  county  law  of 
1892,  which  heretofore  I  have  referred  to. 

Having  regard  to  the  fact  that  counties  were  created  such  for  the 
better  and  more  convenient  government  of  the  state,  both  upon  au- 
thority and  upon  principle,  in  the  exercise  of  those  political  powers 
which  appertain  to  local  government,  and  which  are  for  the  public 
benefit,  they  should  be  no  more  liable  for  damages  resulting  there- 
from, at  the  suit  of  a  private  individual,  than  would  be  the  state  it- 
self. The  counties  and  towns  of  this  state  were  always  bodies  cor- 
porate for  certain  purposes ;  having  been  endowed  with  capacities  to 
purchase  and  to  hold  real  and  personal  property,  and  to  make  con- 
tracts in  reference  thereto.  Rev.  vSt,  pt.  1,  art.  1,  tit.  1,  cc.  11,  12. 
The  corporate  powers  were  of  defined  and  limited  extent,  and  in  all 
other  respects  which  concern  governmental  duties,  included  among 
which  was  the  conservation  of  highways,  roads,  and  bridges,  they 
were  merely  divisions  organized  for  the  convenient  exercise  of  por- 
tions of  the  political  power  of  the  state.  Lorillard  v.  Town  of  Mon- 
roe, 11  N.  Y.  392,  62  Am.  Dec.  120.  The  common-law  rule  which 
rested  the  duty  of  caring  for  and  repairing  highways  and  bridges 
upon  the  counties  did  not  obtain  in  this  state.  That  duty  was  con- 
fided to  the  officers  of  towns.  But  special  acts  were  passed  from 
time  to  time,  whereby  the  burden  has  been  shifted  so  as  to  be  im- 
posed, either  upon  two  or  more  towns,  or  upon  the  county,  or  upon 
both  counties  and  towns.  Hill  v.  Supervisors,  12  N.  Y.  52.  In  the 
county  law  of  1892,  it  was  provided  that  where  a  bridge  spans  any 
of  the  navigable  tide  waters  of  this  state,  as  in  the  present  case, 
forming  a  boundary  line  betwen  two  counties,  the  expense  of  its  main- 
tenance is  made  an  equal  charge  on  the  two  counties  in  which  the 
bridge  is  situated.     Section  68. 

Whether  the  maintenance  of  highways  and  bridges  is  devolved  as 
a  duty  upon  the  towns  or  upon  the  counties  of  the  state,  it  must  be 
regarded  as  a  duty,  in  its  nature,  public  and  governmental.  Loril- 
lard V.  Town  of  Monroe,  supra.  There  is  no  distinction  to  be  made 
between  highways  and  bridges,  in  the  matter  of  the  duty.  A  public 
bridge  is  a  public  highway.  Ang.  Highways,  §  40.  Its  maintenance 
is  quite  as  much  a  governmental  duty  towards  the  public  within  the 
territory  of  the  state,  and  the  principle  that  the  state  holds  its  high- 
ways in  trust  for  the  public  is  applicable.  Northern  Transp.  Co.  v. 
Chicago,  99  U.  S.  635,  25  L.  Ed.  336.  This  is  especially  true  where 
a  bridge  is  necessary  to  cross  the  navigable  waters  of  the  state,  but 
it  is  true  under  all  circumstances.  In  People  v.  Rensselaer  &  S.  R. 
Co.,  15  Wend.  113,  134  (30  Am.  Dec.  33),  it  was  said  by  Savage,  C. 
J.:  "There  can  be  no  question,  therefore,  that  the  state  legislature 
has  the  power  to  build  bridges,  where  they  shall  be  necessary  for  the 


TORTS  3G1 

convenience  of  its  citizens.  *  *  *  It  is  the  duty  of  the  state  gov- 
ernments to  afford  their  citizens  all  the  facilities  of  intercourse  which 
are  consistent  with  the  interests  of  the  community."  To  charge  the 
duty  of  building  and  maintaining  a  bridge  over  navigable  waters 
upon  the  boards  of  supervisors  of  counties  was  but  a  convenient  mode 
of  exercising  that  governmental  function.  The  power  thus  con- 
ferred upon  the  county  officers  was  for  the  public  benefit,  and  in  its 
exercise  they  acted  as  the  agents  for  the  public  at  large. 

The  state,  in  its  sovereign  character,  had  a  duty  to  perform  in  the 
maintenance  of  the  bridge  as  a  part  of  the  public  highway,  and  its 
performance  might  properly  be  delegated  to  the  ofificers  of  the  par- 
ticular civil  division.  The  corporate  body  of  Queens  county  derived 
no  especial  advantage  from  it  in  its  corporate  capacity,  and,  if  that 
be  true,  it  should  not  be  liable  for  the  negligent  acts  of  the  board  of 
supervisors,  upon  whom  the  duty  was  rested  of  reconstructing  the 
bridge.  It  should  be  as  exempt  from  a  private  action  as  would  be 
the  state  itself.  In  People  v.  Supervisors,  etc.,  142  N.  Y.  271,  36  N. 
E.  1062,  w^e  expressly  held  that  the  power  conferred  upon  the  coun- 
ties of  Kings  and  Queens  with  respect  to  this  work  was  in  the  public 
interests,  and  for  the  public  benefit.  As  latelv  as  in  the  case  of 
Hughes  v.  County  of  Monroe,  147  N.  Y.  49,  41'n.  E.  407.  39  L.  R. 
A.  33,  where  it  was  sought  to  hold  the  defendant  liable  for  injuries 
sustained  by  the  plaintiff  while  operating  a  steam  mangle  in  the 
laundry  of  an  insane  asylum,  the  doctrine  was  plainly  asserted  of  the 
nonliability  of  counties  and  of  other  municipal  corixirations  for  the 
acts  of  their  ofificers  when  engaged  in  the  discharge  of  ])ul)lic  duties, 
and  to  that  extent  exercising  acts  of  sovereignty.  This  doctrine  of 
nonliability,  resting  as  it  does  upon  the  princijiie  that  tlie  grant  of 
power  is  to  the  county  in  its  political  character,  and  as  a  means  of 
the  exercise  of  the  sovereign  power  in  measures  of  public  interest 
and  for  the  public  benefit,  is  illustrated  in  varicuis  decisions  of  this 
court  where  the  c|ucstion  ari:)se  as  to  the  liability  of  a  city  for  cor- 
porate acts  resulting,  through  a  negligent  performance,  in  injury  to 
individuals. 

With  respect  to  such  a  municipal  corporation  proper  as  a  eity. 
the  rule  of  law  is  well  settled  by  fre<|ucnt  adjudications  that  the  grant, 
by  the  legislature  of  a  city  charter  authorizing  and  rcciuiring  a  city 
to  perform  certain  duties  renders  it  liable  to  a  private  action  for 
neglect  in  tluir  performance,  when  a  comity  or  town  would  not  be 
so  liable.  A  distinction  exists  between  such  a  corporation,  whkh  iii 
created  by  charter,  and  is  granted  the  jiower  to  own  an<l  to  manaRC 
private  property,  and  is  investe<l  with  particular  franchi<ies,  anrl  a 
municipal  corporation,  which  is  created  for  the  purposes  of  stale 
government,  and  to  exercise,  as  one  of  its  civil  divisions,  certain  of 
its  political  powers.  In  the  case  of  the  former,  its  responsibility  de- 
pends upon  the  nature  of  the  powers  exercised.     ♦     ♦     • 


'MV2  QUASI  CORPORATIONS 

I  think  that  the  principle  of  our  decision  must  necessarily  be  this : 
That  as  the  counties  of  this  state  were  bodies  corporate,  for  certain 
specific  purposes,  before  the  enactment  of  the  county  law  of  1892, 
now  that  they  are  declared  thereby  to  be  municipal  corporations 
their  liability  for  corporate  acts  is  no  further  enlarged  than  what 
may  be  clearly  read  in,  or  implied  from,  the  statute.  Their  becoming 
municipal  corporations  in  name  imports  no  greater  liability,  because 
by  the  third  section  of  the  law  their  liability  for  injuries  is  confined  by 
tfie  language  to  that  which  was  existing.  The  liability  remains  as 
it  was, — neither  greater  nor  less.  No  new  duty  or  burden  has 
been  imposed  upon  counties  in  respect  to  the  maintenance  of  bridg- 
es over  navigable  boundary  streams.  The  duty  which  always  exist- 
ed for  public  purposes  and  for  the  public  benefit  is  continued.  The 
work  of  maintaining  the  bridge  in  question  was  properly  charged  up- 
on the  counties,  because  it  could  be  more  advantageously  performed 
by  them  than  by  the  towns.  Towns  themselves  were  not  liable  for 
damages  arising  from  defective  highways  and  bridges  until,  by  an 
act  of  the  legislature  in  1881,  the  liability  which  formerly  rested 
upon  the  commissioners  of  highways  was  transferred  to  them.  If 
it  was  necessary,  in  order  that  towns  might  be  made  liable  in  private 
actions,  that  there  should  be  such  legislation,  it  is  as  necessary,  I 
think,  that  there  should  be  some  express  legislation,  in  order  to  im- 
pose the  liability  upon  a  county  which  did  not  previously  exist.  The 
object  of  the  county  law  of  1892,  in  my  judgment,  in  declaring  the 
county  a  municipal  corporation,  was  in  order  that  it  might  be  sued 
as  a  legal  entity  in  cases  where  previously  actions  were  maintainable 
only  in  the  name  of  the  board  of  supervisors.     *     *     * 

The  conclusion  I  have  reached  after  a  careful  consideration  of 
the  subject  is  that  in  the  work  of  construction  of  this  bridge  the 
board  of  supervisors  were  executing  a  certain  public  duty,  imposed 
upon  them  as  the  proper  public  agents  in  that  particular  civil  divi- 
sion of  the  state,  and  that  the  county  could  not  be  subjected  to  a 
private  action  for  injuries  occurring  in,  or  by  reason  of,  the  per- 
formance of  the  work.  I  do  not  think  it  is  consonant  with  the  rea- 
son of  the  rule  of  law  which  concedes  to  the  sovereign  power  in  gov- 
ernment an  exemption  from  liability  that  a  private  individual  may 
have  a  right  of  action  against  those  who  have  but  exercised  a  law- 
ful power  which  was  vested  in  them  by  the  legislative  body  for  the 
public  convenience  and  welfare,  and  not  for  any  private  benefit  of  the 
corporate  body.  The  judgment  appealed  from  should  be  affirmed, 
with  costs. 


TORTS  3G3 

FRY  V.  ALEE^IARLE  COUNTY. 

(Supreme  Court  of  Appeals  of  Virginia,  1SS9.     86  Va.  195,  9  S.  E.  1004.  10 

Am.  St  Rep.  S79.) 

Lacy,  J.  This  is  a  writ  of  error  to  a  judgment  of  the  circuit 
court  of  Albemarle  county,  rendered  on  the  14th  day  of  May,  1888. 
The  plaintiff  in  error  here  filed  her  petition  before  the  board 'of  su- 
pervisors of  Albemarle  county  on  the  25th  day  of  Julv,  1887,  repre- 
senting that  she  came  to  Charlottesville,  in  a  buggy  drawn  by 
one  horse,  on  the  21st  day  of  April,  1887,  from  a  point  hi  the  count'v 
of  Albemarle,  in  company  with  another  lady  who  was  riding  in  the 
same  buggy.  In  the  afternoon,  about  4:30  p.  m.,  on  their  way  home, 
they  were  driving  along  one  of  the  public  roads  of  Albemarle  coun- 
ty, going  cautiously  and  carefully  down  a  hill,  when  they  came  to  a 
point  where  the  public  road  was  being  worked  on  by  a  chain-gang, 
composed  of  convicts  out  of  the  state-prison,  or  Penitentiary  House 
at  Richmond,  organized  by  the  county  of  Albemarle  by  authority  of 
an  act  of  assembly  in  that  case  made  and  provided;  when,  seeing  a 
cart  with  a  mule  hitched  to  it  moving  up  the  hill  with  one  of  tlicsc 
convicts  walking  by  the  side  of  the  cart,  they  turned  out  of  the  way 
on  their  righthand  side  as  far  as  they  could,'  and  stopped,  and  calleil 
out  to  the  convict  to  look  to  the  mule ;  that  he  was  very  slow  to  do 
this,  and  so  slow  and  negligent  about  it  that  the  cart  collided  with 
the  buggy,  and  turned  it,  together  with  its  occupants,  into  the  diioli 
on  the  road-side,  and  hurt  the  petitioner  very  much,  by  which  she 
had  been  caused  suffering  and  loss  in  physician's  fees,  and  other  ex- 
penses, and  that  she  believed  herself  to  be  permanently  injured;  that 
this  convict  was  an  employe  of  the  county  of  Albemarle,  and  that  the 
county  was  therefore  liable  in  damages  for  these  personal  injuries  in- 
flicted upon  her  by  the  county's  servant,  aiul  she  demanded  ?5/XX) 
for  the  same. 

This  claim  the  board  of  supervisors  rejected,  and  she  appealed  \o 
the  county  court,  when  her  pelilion  was  again  rejected,  and  therenpMii 
she  appealed  to  the  circuit  court  for  the  said  county,  when  tlie  '}\u\^ 
ment  of  the  county  court  was  aftinned,  whereupon  she  brought  the 
case  here  by  writ  of  error.  The  petition  was  rejected  in  the  county 
court  upon  demurrer;  so  all  we  have  to  consider  here  is  the  sinf.;le 
question  whether  the  pelilion  presents  a  case  for  which  the  county 
of  Albemarle  is  liable  to  answer  in  damages. 

The  decision  of  the  lower  courts  in  this  case  is  founded  upon  the 
principle  that  the  sovereign  cannot  be  sued  except  by  its  own  con- 
sent, as  may  be  provided  by  law;  and  that  in  the  exercise  of  its  sov- 
ereign power  it  is  liable  neither  for  misuser  nor  non-user;  and  that  a 
county  in  this  state  is  a  political  subdivision  of  the  state  for  govern- 
mental puri)oses  as  prescribed  by  public  law,  and  is  no  more  than 
the  state  liable  to  be  sued  for  its  public  acts,  and  that  it  cannot  be 


364  QUASI   CORPORATIONS 

held  chargeable  for  the  acts  of  an  officer  whose  duties  are  fixed  and 
prescribed  by  law. 

Suits  against  the  state  are  allowed  by  law  under  certain  regula- 
tions, and,  in  certain  specified  and  enumerated  cases,  counties  in  this 
state  are  authorized  to  sue  and  are  suable  in  the  circuit  court  held 
for  such  county  in  their  own  names,  but  these  are  limited.  The 
thirteenth  section  of  chapter  45  of  the  Code  of  1873  provides  that 
"counties  may  sue  in  their  own  names  for  forfeitures,  fines,  or  pen- 
alties given  by  law  to  such  counties,  or  upon  contracts  made  with 
them,  and  may  be  sued  in  their  own  names,  in  the  circuit  court  of 
such  county." 

The  legislature  has  given  a  remedy  in  cases  growing  out  of  con- 
tracts with  counties,  but  it  has  given  no  remedy  against  a  county  for 
the  negligence  of  a  public  officer  or  servant  appointed  by  law,  and 
we  may  observe,  as  did  Lord  Kenyon  long  ago,  that  the  question 
here  is  "whether  this  body  of  men,  who  are  sued  in  the  present  ac- 
tion, are  a  corporation,  or  qua  a  corporation,  against  whom  such 
an  action  can  be  maintained.  If  it  be  reasonable  that  they  should 
be  by  law  liable  to  such  an  action,  recourse  must  be  had  to  the  legis- 
lature for  that  purpose."  Russell  v.  Men  of  Devon,  2  Term  R.  671. 
"And  even  if  we  could  exercise  a  legislative  discretion  in  this  case, 
there  would  be  great  reason  for  not  giving  this  remedy." 

The  rules  established  by  the  courts  concerning  municipal  corpora- 
tions have  but  slight  application  to  counties  organized  as  ours  are. 
Our  counties  are  parts  of  the  state;  political  subdivisions  of  the 
state;  created  by  the  sovereign  power  for  the  exercise  of  the  func- 
tions of  local  government.  As  was  said  by  a  learned  judge  in  a  case 
not  now  modern,  counties  are  "at  most  but  local  organizations, 
which,  for  purposes  of  civil  administration,  are  invested  with  a  few 
functions  characteristic  of  a  corporate  existence.  *  *  *  They  are 
local  subdivisions  of  a  state,  created  by  the  sovereign  power  of  the 
state,  of  its  own  sovereign  will,  without  the  particular  solicitation, 
consent,  or  concurrent  action  of  the  people  who  inhabit  them." 
Board  v.  Mighels,  7  Ohio  St.  109. 

A  municipal  corporation  proper  is  created  mainly  for  the  interest, 
advantage,  and  convenience  of  its  locality  and  its  people.  A  county 
organization  is  created  almost  exclusively  with  a  view  to  the  policy 
of  the  state  at  large,  for  purposes  of  political  organization  and  civil 
administration,  in  matters  of  finance,  of  education,  of  provision  for 
the  poor,  of  military  organization,  of  the  means  of  travel  and  of  trans- 
port, and  especially  for  the  general  administration  of  justice.  With 
scarcely  an  exception,  all  the  powers  and  functions  of  the  county 
organization  have  a  direct  and  exclusive  reference  to  the  general  poli- 
cy of  the  state,  and  are,  in  fact,  but  a  branch  of  the  general  admin- 
istration of  that  policy  (opinion  of  Brinkerhofif,  J.,  in  same  case). 
In  that  case  it  was  sought  to  make  the  county  liable  in  damages  to 
one  who  suffered  a  personal  injury  from  the  neglect  of  the  commis- 


TORTS  305 

sioners  of  the  county  in  the  discharge  of  their  of^kial  duties;  and 
the  court  said :  "But  it  is  said  the  members  of  the  board  of  county 
commissioners  are  chosen  by  the  electors  of  the  county,  and  hence 
the  board  is  to  be  regarded  as  the  agents  of  the  county,  for  whose 
torts  in  the  performance  of  official  duties  the  county  ought  to  be  re- 
sponsible. True,  the  people  of  the  county  elect  the  boa'rd  of  county 
commissioners,  but  they  also  elect  the  sheriflf  and  treasurer  of  the 
county.  Are  the  people  of  the  county,  therefore,  responsible  for  the 
malfeasance  in  office  of  the  sheriff,  or  for  the  official  defalcations  of 
the  county  treasurer?  *  *  *  We  cannot  but  think  that  countv 
commissioners  are  not  agents  or  representatives  of  the  county  in  any 
such  sense  or  manner  as  to  render  the  people  of  the  county  justly 
answerable  for  their  neglect,"  even  if  the  neglect  be  such  as  would 
create  a  civil  liability  against  a  natural  person  or  a  numicipal  or 
private  corporation.  "It  is,"  he  adtls,  "undoubtedly  comi)ctent  for 
the  legislature  to  make  the  people  of  a  county  liable  for  the  official 
delinquencies  of  the  county  commissioners;  *  ♦  *  but  this  has 
not  yet  been  done,  and  we  think  that  such  liability  cannot  be  derived 
from  the  relation  of  the  parties  either  on  the  principles  or  the  prece- 
dents of  the  common  law."  See,  also,  Jacobs  v.  Hamilton  Co..  4 
Fish.  Pat.  Cas.  81,  Fed.  Cas.  No.  7,16l';  Soper  v.  Henry  Co..  26 
Iowa,  264;  Treadwell  v.  Commissioners,  11  Ohio  St.  190;  Aug.  & 
A.  Corp.  §§  14,  23-25;  Dill.  Mun.  Corp.  §§  9,  Z2,  39,  761.  762. 

In  this  case  the  county  of  Albemarle  is  sued  to  recover  damages 
resulting  from  the  alleged  negligence  of  a  state  convict  engaged  in 
working  on  the  public  roads  of  the  state, — the  public  highways  in  the 
county  of  Albemarle  belong  to  the  commonwealth,  not  t»)  the  coun- 
ty,— and  of  the  alleged  negligence  of  a  superintendent  who  was  ap- 
pointed by  the  authority  of  a  state  law. 

No  suit  can  be  maintained  against  the  county  of  Albemarle  upon 
the  principle  of  respondeat  su])erior.  because  the  rclatitm  of  mastcT 
and  servant  did  not  exist.  Such  oflicers  are  (|uasi  public  officers  of 
the  state;  for,  although  the  officer  in  charge  was  appointi-ij  by  the 
county,  yet  the  office  and  duties  incident  to  it  were  created  by  an 
act  of  the  legislature,  for  the  general  ])ublic  welfare;  the  public  roads 
of  Albemarle  ctnmty  being  inghways  of  the  coinmonweahh  for  the 
common  benefit  of  all  the  [)eoj)le  of  the  stale  who  have  a  rif^ht  to 
use  them. 

We  have  been  referred  to  numerous  decisions  concerning  the  char- 
acter of  the  duty  re(|uired  of  tlu-se  and  other  officials  similarly  sitti- 
ated,  drawing  a  distinctiin  where  the  duty  is  for  the  benefit  of  the 
general  public  and  where  it  is  for  the  benefit  of  a  corporation,  bni 
we  do  not  cite  them.  They  arc  more  distinctly  applicable  to  numic- 
ipal corporations  proper  than  to  such  organizations  as  conntic)*, 
which  are  rather  political  subdivisions  of  the  state,  or,  as  sometimes 
denominatcfl,  "fjuasi  corporations." 


366  QUASI  CORPORATIONS 

Upon  reason,  as  well  as  upon  authority,  we  are  clearly  of  opinion 
that  the  judgment  of  the  circuit  court  affirming  the  judgment  of  the 
county  court  of  Albemarle  was  plainly  right,  and  the  same  will  be 
here  affirmed. 


IV.  County  Bonds 


CLAIBORNE  COUNTY  v.  BROOKS. 

(Supreme  Court  of  the  United  States,  1884.    Ill  U.  S.  400,  4  Sup.  Ct.  489,  28 

L.  Ed.   470.) 

In  Error  to  the  Circuit  Court  of  the  United  States  for  the  Eastern 
District  of  Tennessee. 

Bradley,  J.'^  This  was  an  action  of  debt,  brought  by  the  appel- 
lee, (the  plaintiff  below,)  as  bankrupt  assignee  of  Howard,  Cole  &  Co., 
against  the  county  of  Claiborne,  Tennessee,  on  its  bond  or  obligation, 
dated  the  seventh  day  of  April,  1868,  payable  to  one  V.  H.  Sturm,  or 
order,  for  $5,000,  with  interest,  and  indorsed  by  Sturm  to  Howard, 
Cole  &  Co.     *     *     * 

The  case  was  commenced  in  the  state  court  and  was  removed  into 
the  circuit  court  of  the  United  States,  and  came  up  for  trial  on  the 
pleas  of  non  est  factum,  nil  debet,  and  payment,  other  pleas  having 
been  overruled  on  demurrer.  A  verdict  being  rendered  in  favor  of 
the  plaintiff  under  the  charge  of  the  court,  and  exceptions  being  taken 
to  the  charge,  the  case  is  brought  here  by  writ  of  error.     *     *     * 

The  following  sections  of  the  Code  of  Tennessee  show  the  powers 
of  counties  in  that  state  in  relation  to  the  erection  of  public  buildings, 
and  the  making  of  contracts : 

Sec.  402.  "Every  county  is  a  corporation,  and  the  justices  in  the 
county  court  assembled  are  the  representatives  of  the  county,  and 
authorized  to  act  for  it." 

Sec.  403.  "Suits  may  be  maintained  against  a  county  for  any  just 
claim  as  against  other  corporations." 

Sec.  404.  "Each  county  may  acquire  and  hold  property  for  county 
purposes,  and  make  all  contracts  necessary  or  expedient  for  the  man- 
agement, control,  and  improvement  thereof,  and  for  the  better  ex- 
ercise of  its  civil  and  political  power;  may  do  such  other  acts,  and 
exercise  such  other  powers  as  may  be  allowed  by  law." 

Sec.  408.  "It  is  the  duty  of  the  county  court  to  erect  a  court-house, 
jail,  and  other  necessary  county  buildings." 

Sec.  410.  Such  buildings  "shall  be  erected  within  the  limits  of  the 
county  town." 

6  For  discus.sion  of  principles,  see  Cooley,  Mun.  Corp.  §  180. 

7  Part  of  the  opinion  is  omitted. 


COUNTY   BONDS  367 

Sec.  411.  "The  county  buildings  are  to  be  erected,  and  kept  in  order 
and  repair  at  the  expense  of  the  countv.  under  the  direction  of  the 
county  court,  and  it  may  levy  a  special  tax  for  that  purpose."       ' 

Sec.  414.  [Confers  power  on  the  justices  of  the  countv  court  when 
deemed  for  the  public  interest,  to  change  the  site  of  the  county  jail 
or  court-house,  and  to  order  a  sale  of  the  site  or  materials;]  '"and 
they  may  also  order  that  a  more  eligible,  convenient,  healthy,  or  secure 
site  be  purchased,  and  cause  to  be  erected  thereon  a  new  jail  or  court- 
house, better  suited  to  the  convenience  of  said  town,  and  secure  the  safe 
custody,  health,  and  comfort  of  the  prisoners."     ♦     ♦     * 

From  the  instructions  requested  by  the  defendant  and  those  given 
by  the  court  (although  there  is  a  want  of  explicitness  in  the  bill  of 
exceptions)  we  gather  that  the  real  controversy  was,  whether  the  de- 
fendant could  set  up  against  the  assignees  of  the  bond  a  defense  (such 
as  payment)  which  would  have  been  good  against  Sturm,  the  original 
holder,  as  to  whom  evidence  was  given  tending  to  show  that  he  had 
received  from  the  county  all,  or  nearly  all,  that  he  was  entitled  to. 
independently  of  the  bond  sued  on.  Unless  this  was  the  real  contro- 
versy, we  do  not  see  the  relevancy  of  the  charge.  For  if  the  right 
of  the  defendant  to  set  up  the  defense,  which  it  had  against  the 
bond  in  the  hands  of  Sturm,  was  not  denied  or  disputed,  we  do  not 
see  of  what  importance  the  particular  form  of  the  instrument  would 
have  been.  But  if  the  form  was  relied  on  as  precluding  any  such 
defense,  then  the  charge  was  clearly  material,  and  had  a  decisive  bear- 
ing upon  the  case. 

The  doctrine  of  the  charge  is  that  the  power  of  a  county  to  erect 
a  court-house  involves  and  implies  the  power  to  contract  fur  its  erec- 
tion; and  the  power  to  contract  involves  and  implies  the  jxjwer  to 
execute  notes,  bonds,  and  other  commercial  paper  as  evidence  or  se- 
curity for  the  contract;  or,  to  state  it  according  to  its  legitimate  con- 
clusion and  result,  it  is  this,  that  whenever  a  county  has  power  to 
contract  for  the  performance  of  any  work  or  for  any  other  thing, 
it  has  incidental  power  to  issue  commercial  pajjcr  in  payment  thereof ; 
that  the  one  power  implies  the  other.  It  being  clear  that  the  county  of 
Claiborne  had  power  to  erect  a  cf)urt-house,  the  court  below  held  that 
this  involved  an  implied  power  to  contract  out  the  work,  and  to  issue 
negotiable  bonds  of  a  commercial  character  in  payment  thereof. 

We  cannot  concur  in  this  view,  'i'hc  erection  of  court-houses,  jails, 
and  bridges  is  among  the  ordinary  jxjlitical  or  administrative  duties 
of  all  counties;  and,  from  the  doctrine  of  the  charge,  it  would  neces- 
sarily follow  that  all  counties  have  the  incidental  power,  without  any 
express  legislative  authority,  to  issue  bonds,  notes,  nti'l  ntlier  com- 
mercial paper  in  payment  of  county  debts  aufl  cha  md  if  they 
have  this  power,  then  such  obligations,  issued  by  the  county  authori- 
ties and  passing  into  the  hands  of  bona  fide  holders,  wo»iM  ;  '<• 
the  county  from  showing  that  they  were  isstirfj  iinpmperly.  or  »>..,,■  .it 
consideration,  or  for  a  debt  already  paid  :    and  it  would  then  be  in  the 


3G8  QUASI  CORPOUATIONS 

power  of  such  authorities  to  utter  any  amount  of  such  paper,  and  to 
fasten  irretrievable  burdens  upon  the  county  without  any  benefit  re- 
ceived. Our  opinion  is  that  mere  political  bodies,  constituted  as  coun- 
ties are,  for  the  purpose  of  local  police  and  administration,  and  having 
the  power  of  levying  taxes  to  defray  all  public  charges  created,  whether 
they  are  or  are  not  formally  invested  with  corporate  capacity,  have 
no  power  or  authority  to  make  and  utter  commercial  paper  of  any 
kind,  unless  such  power  is  expressly  conferred  upon  them  by  law, 
or  clearly  implied  from  some  other  power  expressly  given,  which  can- 
not be  fairly  exercised  without  it. 

Our  views  on  this  subject  were  distinctly  expressed  in  the  case  of 
Police  Jury  v.  Britton,  15  Wall.  566,  21  L.  Ed.  251,  where,  speaking 
of  the  power  of  local  political  bodies  to  issue  commercial  paper,  we 
said :  "It  seems  to  us  to  be  a  power  quite  distinct  from  that  of  in- 
curring indebtedness  for  improvements  actually  authorized  and  under- 
taken, the  justness  and  validity  of  which  may  always  be  inquired  into. 
It  is  a  power  which  ought  not  to  be  implied  from  the  mere  authority 
to  make  such  improvements.  It  is  one  thing  for  county  or  parish 
trustees  to  have  the  power  to  incur  obligations  for  work  actually  done 
in  behalf  of  the  county  or  parish,  and  to  give  proper  vouchers  there- 
for, and  a  totally  different  thing  to  have  the  power  of  issuing  unim- 
peachable paper  obligations  which  may  be  multiplied  to  an  indefinite 
extent.  If  it  be  once  conceded  that  the  trustees  or  other  local  repre- 
sentatives of  townships,  counties,  and  parishes  have  the  implied  power 
to  issue  coupon  bonds,  payable  at  a  future  day,  which  may  be  valid 
and  binding  obligations  in  the  hands  of  innocent  purchasers,  there  will 
be  no  end  to  the  frauds  that  will  be  perpetrated.  We  do  not  mean 
to  be  understood  that  it  requires  in  all  cases  express  authority  for 
such  bodies  to  issue  negotiable  paper.  The  power  has  frequently 
been  implied  from  other  express  powers  granted.  Thus,  it  has  been 
held  that  the  power  to  borrow  money  implies  the  power  to  issue  the 
ordinary  securities  for  its  repayment,  whether  in  the  form  of  notes 
or  bonds  payable  in  future."  Pages  571,  572.  In  that  case  the  suit 
was  brought  on  coupons  of  bonds  given  to  take  up  certain  levee  war- 
rants issued  by  the  police  jury  of  the  parish;  and  the  court  were 
unanimously  of  opinion  that  the  police  jury  had  no  power  to  issue 
such  bonds. 

In  the  subsequent  case  of  Mayor  of  Nashville  v.  Ray,  19  Wall.  468, 
22  L.  Ed.  164,  the  circumstances  were  somewhat  different.  That  was 
the  case  of  an  incorporated  city,  and  the  suit  was  brought  on  treasury 
warrants  drawn  by  the  mayor  and  recorder  on  the  city  treasurer, 
payable  to  bearer,  and  originally  delivered  to  various  persons  for  work 
done  for  the  city ;  they  were  afterwards  received  by  the  tax  collector 
in  payment  of  taxes,  and  then  sold  for  such  price  as  they  would  bring 
to  raise  money  for  city  purposes ;  the  plaintiff  had  purchased  the 
warrants  in  suit,  and  evidence  was  given  to  show  that  he  had  notice 
that  they  had  been  paid  in  and  received  for  taxes;  but  the  court  below 


COUNTY    BONDS  369 

held  that  the  corporation  had  the  right  to  issue  promissory  notes  and 
other  securities ;  and  that  if  it  was  the  usage  to  reissue  them  in  this 
way,  they  would,  when  sold  and  reissued,  be  obligatory  on  the  city. 
All  the  justices  of  this  court  held  that,  when  originally  issued,  they 
were  vahd  as  vouchers  and  evidences  of  actual  indeljtedness,  and  the 
three  dissenting  justices  held  with  the  court  below  that  they  were  valid 
obligations  when  reissued;  but  a  majority  of  the  court  concurred  in 
reversing  the  judgment,  and  four  of  the  justices  were  of  opinion  that, 
as  the  city  had  no  express  power  to  borrow  money  or  to  issue  com- 
mercial paper,  and,  in  their  view,  no  general  power  by  which  it  was 
necessarily  implied,  the  warrants  when  once  paid  in  for  taxes  were 
nothing  but  redeemed  vouchers,  and  functus  officio,  and  ceased  to  have 
any  validity,  and  that  the  city  officers  had  no  authority  to  reissue  them ; 
that  it  was  an  unauthorized  use  of  the  city's  credit,  and  an  attemjjt  to 
borrow  money  and  to  issue  commercial  paper  without  any  power  or 
authority  to  do  so ;  and  that  the  plaintiff's  claim  of  being  a  bona  fide 
holder  could  not  avail  him. 

In  discussing  the  subject  the  following  remarks  were  made,  wliich 
were  quoted  with  approval  in  the  subsequent  case  of  Wall  v.  Count v 
of  Monroe,  103  U.  S.  78,  26  L.  Ed.  430:   "Vouchers  for  money  due. 
certificates  of  indebtedness  for  services  rendered,  or  for  property  fur- 
nished for  the  use  of  the  city,  orders  or  drafts  drawn  by  one  city  oflicer 
upon  another,  or  any  other  device  of  the  kind,  used  for  li(|uidating  the 
amounts  legitimately  due  to  public  creditors,  are,  of  course,  necessary 
instruments  for  carrying  on  the  machinery  of  municipal  administra- 
tion, and  for  anticipating  the  collection  of  taxes.     But  to  invest  such 
documents  with  the  character  and  incidents  of  commercial  paper,  so 
as  to  render  them  in  the  hands  of  bona  fide  holders  absolute  obligations 
to  pay,  however  irregular  or  fraudulently  issued,  is  an  abuse  of  their 
true  character  and  purpose."     And  again:    "Every  holder  of  a  city 
order  or  certificate  knows  that,  to  be  valid  and  genuine  at  all,  it  must 
have  been  issued  as  a  voucher  for  city   indebtedness.     It  cmiM   not 
be  lawfully  issued  for  any  other  i)uri)ose.     lie  nnist  take  it,  there- 
fore, subject  to  the  risk  that  it  has  been  lawfully  and  projjerly  isMied. 
His  claim  to  be  a  bona  fide  holder  will  always  be  subject  to  this  (|uali- 
fication.    The  face  of  the  paper  itself  is  notice  to  him  that  its  validity 
depends  upon  the  regularity  of  its  issue.    The  officers  of  the  city  have 
no  authority  to  issue  it  for  any  illegal  or  impri>i)er  purpose,  and  their 
acts  cannot  create  an  estopi)el  against  the  city  itself,  its  taxpayers, 
or  people.     Persons  receiving  it  from  them  know  whether  it  is  is''ii(  .1 
and  whether  they  receive  it  for  a  proper  pur|)osc  and  a  proper  con 
eration.    Of  course  they  are  affected  by  the  absence  of  these  essential 
ingredients;    and  all  subsef|uent  holders  take  cum  oncrc,  an<l  arc  af- 
fected by  the  same  defect." 

The  counsel  for  the  defendant  in  error  relics  strongly  on  thf  CA<ri 
of  Lynde  v.  County  of  Winnebago,  16  Wall.  6,  21  L.  Ed.  272,  .  i 

COOLEY  Ca.seh  Mun.C. — 1'4 


o 


70  QUASI   CORPORATIONS 


by  this  court,  and  State  v.  Anderson  County,  8  Baxt.  (Tenn.)  249, 
decided  by  the  supreme  court  of  Tennessee,  as  well  as  upon  various 
decisions  of  other  state  courts,  particularly  Williamsport  v.  Com.,  84 
Pa.  487,  24  Am.  Rep.  208;  Mills  v.  Gleason,  11  Wis.  470;  and  Bank 
of  Chillicothe  v.  Chillicothe,  7  Ohio,  pt.  2,  p.  31,  30  Am.  Dec.  185. 

Conceding  that  views  different  from  those  which  we  have  expressed 
are  entertained  by  some  of  the  state  courts,  and  that  they  may  be  con- 
trolling in  the  states  where  they  are  thus  entertained,  we  are  more 
especially  concerned  to  know  what  is  held  to  be  the  law  in  Tennessee, 
as  well  as  what  may  have  been  held  in  the  decisions  of  this  court  in 
former  cases. 

In  the  case  of  Lynde  v.  County  of  Winnebago,  the  county  had  ex- 
press legislative  authority  to  borrow  money  for  the  erection  of  public 
buildings,  to  be  determined  by  the  people  of  the  county  at  any  regular 
election  or  special  election  called  for  the  purpose.  The  question  in  the 
case  was  not  as  to  the  existence  of  the  power,  but  as  to  the  effect  of 
the  evidence  on  the  question  whether  the  conditions  for  its  exercise 
had  been  complied  with.  The  court  held  that  the  evidence  was  suffi- 
cient, and  sustained  the  bonds.  It  was  not  pretended  that  the  county 
would  have  had  power  to  issue  them  if  such  power  had  not  been  con- 
ferred by  the  legislature,  either  expressly  or  by  necessary  implication, 
from  the  express  power  to  "borrow  money." 

In  the  case  of  State  v.  Anderson  County  the  authority  to  issue  bonds 
was  still  more  explicit.  An  act  of  the  legislature  of  Tennessee,  passed 
in  1852,  (chapter  191,)  had  authorized  certain  counties  to  subscribe 
stock  in  any  chartered  railroad  located  through  said  counties,  in  any 
amount  determined  upon,  in  the  manner  prescribed  by  law,  and  to 
issue  bonds  for  the  amount  subscribed.  Another  act,  passed  in  1854, 
applied  these  provisions  expressly  to  Anderson  county,  and  the  bonds 
in  question  in  that  case  were  issued  in  pursuance  of  this  act,  although 
the  preliminary  proceedings  had  been  taken  under  a  different  act, 
which  authorized  a  subscription  to  the  stock,  but  did  not  expressly  au- 
thorize the  issue  of  bonds  therefor.  The  supreme  court  of  Tennessee, 
it  is  true,  expressed  an  opinion  that  authority  to  issue  the  bonds  was 
implied  from  the  power  given  to  subscribe  for  stock,  without  the  aid 
of  the  act  of  1854,  stating,  as  a  general  rule,  "that  a  county,  like  an- 
other corporation,  having  right  to  create  a  debt,  has  also  the  incidental 
right  to  issue  the  commercial  evidence  of  it,  in  such  forms  as  may 
be  satisfactory  to  the  parties."  But  the  statement  of  this  general 
proposition  may  be  regarded  as  only  a  dictum  in  the  case,  since  the 
judgment  was  fully  supported  by  the  express  provisions  of  the  act  of 
1852,  c.  191,  if  not  by  the  power  given  to  subscribe  for  stock  in  a 
railroad  corporation.  We  are  not  referred  to  any  other  decision  of 
the  supreme  court  of  Tennessee  which  comes  any  nearer  to  a  deter- 
mination of  the  question. 

It  is  undoubtedly  a  question  of  local  policy  with  each  state  what  shall 
be  the  extent  and  character  of  the  powers  which  its  various  Dolitical 


COUNTY    BONDS  3  » 1 

and  municipal  organizations  shall  possess;  and  the  settled  decisions 
of  its  highest  courts  on  this  subject  will  be  regarded  as  authoritative 
by  the  courts  of  the  United  States;  for  it  is  a  question  that  relates 
to  the  internal  constitution  of  the  body  politic  of  the  state.  But  as 
all,  or  nearly  all,  the  states  of  the  Union  are  subdivided  into  political 
districts  similar  to  those  of  the  countr}-  from  which  our  laws  and  in- 
stitutions are  in  great  part  derived,  having  the  same  general  purposes 
and  powers  of  local  government  and  administration,  we  feel  author- 
ized, in  the  absence  of  local  state  statutes  or  decisions  to  the  contrary, 
to  interpret  their  general  powers  in  accordance  with  the  analogy  fur- 
nished by  their  common  prototypes,  varied  and  modified,  of  course, 
by  the  changed  conditions  and  circumstances  which  arise  from  our 
peculiar  form  of  government,  our  social  state,  and  physical  surround- 
ings. 

With  regard  to  the  political  divisions  of  counties  and  townships,  we 
have  heretofore,  in  the  cases  referred  to,  expressed  our  views  as  to 
their  power  of  issuing  paper  obligations  of  a  commercial  character. 
We  consider  such  a  power  as  entirely  foreign  to  the  purposes  of  their 
creation,  and  as  never  to  be  conceded  except  by  express  legislation,  or 
by  necessary,  or,  at  least,  very  strong,  implication  from  such  legisla- 
tion. The  reasons  for  these  views  were  fully  expressed  in  those  cases, 
and  need  not  be  repeated.  We  adhere  to  them  without  mollification. 
But  when  a  case  comes  before  us  from  a  state  in  which  a  diiVcrcnt  pol- 
icy prevails,  clearly  shown  by  the  local  constitution  or  statutes,  or  by  the 
settled  decisions  of  the  state  courts,  we  are  bound  to  decide  it  accord- 
ingly.   We  are  not  satisfied  that  this  is  such  a  case. 

The  sections  of  the  Code  of  Tennessee  already  referred  to.  so  far 
as  we  can  perceive,  confer  only  the  ordinary  powers  generally  given 
to  county  jurisdictions.  No  extraordinary  powers  are  given;  and 
no  mode  of  raising  funds  for  the  erection  or  repair  of  public  build- 
ings is  pointed  out,  except  the  levy  of  a  special  lax. 

In  the  case  of  W^clls  v.  Sup'rs,  102  U.  S.  631,  26  L.  Kd.  122.  wc 
held  that  the  ])ower  to  issue  county  bonds  did  not  arise  from  a  power 
to  subscribe  for  stock  in  a  railroad  company,  where  authority  was 
at  the  same  time  given  to  assess  and  collect  a  tax  for  the  payment  of 
the  capital  stock,  and  no  other  authority  fo  raise  the  re(|uisite  funds 
was  given. 

Under  the  Code  of  Tennes.sec  contracts  may  of  course  be  made  for 
the  erection  <jr  repair  oi  public  buildings,  an<l  the  |H)wcr  to  issue 
vouchers  for  payment  is  necissarily  implied,  but  no  iH)wer  •"  ■••vcn 
to  issue  bonds  or  other  commercial  paper  having  the  privi'  nd 

exemptions  accorded  to  that  class  of  commercial  sccuriti*  •  such 

power  is  expressly  given,  and  in  our  judgmcnl  no  such  power  is  nec- 
essarily implied.  The  document  sued  on  in  this  case  may  very  well 
have  served  the  puri)Ose  of  a  voucher  to  show  a  stated  account  a% 
between  Sturm  and  the  county,  and  may  be  of  such  form  as  to  l>c  as- 
signable bv  indorsement,  but  it  must  always  be  liable,  in  whosesoever 


372  QUASI   CORPORATIONS 

hands  it  may  come,  to  be  open   for  examination  as  to  its  validity, 
honesty,  and  correctness. 

The  judgment  of  the  circuit  court  must  be  reversed,  and  the  cause 
remanded,  with  directions  to  award  a  new  trial,  and  to  take  such 
further  proceedings  as  may  be  in  accordance  with  this  opinion. 


BROWN  V.  BON  HOMME  COUNTY. 

(Supreme  Court  of  South  Dakota,  1890.     1  S.  D.  216,  46  N.  W.  173.) 

Corson,  P.  J.^  This  is  an  action  (two  cases  consolidated) 
brought  by  the  plaintiff  against  the  county  of  Bon  Homme,  on  a 
number  of  bonds  and  coupons  alleged  to  have  been  issued  by  said 
county,  bearing  date  the  1st  day  of  July,  A.  D.  1878.     *     *     * 

On  the  back  of  each  bond  was  printed  a  copy  of  the  act,  the  title 
of  which  is  given  in  the  bonds,  and  the  sections  that  are  deemed  ma- 
terial to  an  understanding  of  this  case  are  as  follows : 

"Section  1.  That  the  outstanding  indebtedness  of  the  county  of 
Bon  Homme,  territory  of  Dakota,  payable  out  of  the  taxes  for  ordi- 
nary county  revenues,  special  bridge  fund,  and  the  sinking  fund  tax, 
shall  be  funded  as  hereinafter  provided. 

"Sec.  2.  That  the  county  commissioners  of  the  aforesaid  county,  on 
the  passage  of  this  act,  shall  have  the  authority,  and  it  is  hereby  made 
their  duty,  to  provide  that,  whenever  warrants  drawn  upon  the  fund 
hereinbefore  mentioned  shall  be  presented  to  the  county  treasurer  of 
said  county,  in  sums  of  fifty  dollars  and  upwards,  for  the  purpose 
of  being  funded,  such  warrants  shall  be  taken  up,  the  interest  calcu- 
lated thereon  on  the  1st  day  of  July,  1878,  and  in  lieu  thereof,  and  in 
payment  of  said  warrants,  that  the  bonds  of  said  county,  in  denom- 
inations of  not  less  than  fifty  dollars,  bearing  date  July  1,  1878,  and 
with  coupons  for  interest  attached  to  said  bonds,  and  payable  as  here- 
inafter mentioned,  be  issued  to  the  holder  of  such  warrants." 

"Sec.  4.  It  shall  be  the  duty  of  the  county  commissioners  of  said 
county  to  fund  the  outstanding  indebtedness,  as  herein  provided,  to 
levy  and  collect  annually  a  tax,  in  cash,  sufficient  to  pay  the  interest 
on  said  bonds,  and  after  five  years  they  shall  collect,  in  addition 
thereto,  annually,  a  sinking  fund  bond  tax,  sufficient  to  pay  the  prin- 
cipal of  such  bonds  by  the  time  they  shall  become  due  and  payable; 
and  with  such  sinking  fund  bond  tax,  as  fast  as  the  same  is  collected, 
they  shall  go  into  the  market  and  buy  up  such  bonds,  and  retire  the 
same,  and  such  interest  tax  and  sinking  fund  bond  tax  shall  not  be 
used  for  any  other  purpose:  provided,  that  no  more  than  the  par  value 
shall  be  paid  for  said  bonds." 

"Sec.  6.  The  county  commissioners  of  said  county  shall,  at  the  first 
session  of  the  board  after  the  passage  of  this  act,  make  such  provisions 

8  Part  of  the  opinion  is  omitted. 


COUNTY   BONDS  37;{ 

as  shall  be  necessary  and  proper  for  carrying  out  the  provisions  of 
this  act,  or  as  soon  thereafter  as  it  can  reasonably  be  done ;  and  such 
bonds  shall  be  either  printed  or  lithographed,  with  interest  coupons 
thereto  attached,  and  shall  be  executed  by  the  chairman  of  the  lioard 
of  commissioners  for  the  county  aforesaid,  and  shall  be  under  the 
seal  of  the  county,  and  attested  by  the  clerk  thereof,  and  shall  be  pay- 
able to  the  order  of  the  persons  respectively  presenting  such  war- 
rants."    *     *     * 

The  complaints  are  in  the  usual  form,  and  the  answers,  which  are 
substantially  the  same.  are.  in  substance,  as  follows:  After  denying; 
each  and  every  allegation  of  the  complaint  not  specifically  admitted, 
they  proceed  to  allege,  as  matter  of  defense,  that  the  board  of  countv 
commissioners  of  said  Bon  Homme  county  never  made  any  provi- 
sion for  funding  the  indebtedness  of  said  county,  in  pursuance  of  the 
provisions  of  the  act  under  which  said  bonds  and  coupons  purport  to 
be  issued,  and  that,  until  the  said  board  had  provided  for  carrying 
into  effect  the  said  act,  there  was  no  authority  or  power  conferred 
upon  the  chairman  and  clerk  of  said  board  to  issue  the  bonds  of  the 
said  county,  sued  upon  in  this  action ;  that  said  board  never  authorized 
the  issue  of  said  bonds,  or  empowered  the  chairman  and  clerk  of  said 
board  to  sign  the  same  on  behalf  of  the  county  ;  that  the  bonds  in 
suit  purporting  to  be  signed  by  the  chairman  and  clerk  of  said  board 
are  not  the  bonds  and  coupons  of  said  county ;  that  the  same  were 
issued  without  consideration,  or  the  surrender  of  any  warrants  of  the 
county  authorized  to  be  funded  under  the  said  act ;  that  the  s.iid 
bonds  and  coupons  are  illegal  and  void,  and  that  A.  M.  Young,  who 
purports  to  have  signed  them  as  chairman,  was  not  sucli  chairman  at 
the  time  the  bonds  purport  to  have  been  issued,  and  that  the  defend- 
ant is  not  indebted  u])on  said  bonds  in  any  sum  whatever.     ♦     ♦     ♦ 

The  first  question,  therefore,  to  be  determined  by  the  court  is.  arc 
the  bonds,  so  signed  by  the  chairman  Young  and  the  county  clerk,  in 
July,  1877,  but  bearing  date  July  1,  1S7S,  witliout  authority  to  i>suc 
them  being  conferred  by  the  board  of  county  commissioners,  'valid 
bonds  of  Bon  Homme  county,  and  binding  upon  that  county? 

The  first  objection  to  the  validity  of  these  bonds  is  that  they  were 
signed  and  issued  before  the  time  they  bear  date,  and  that,  at  the  time 
they  bear  date,  A.  M.  Young,  who  signed  them  as  chairman,  was 
neither  chairman  nor  member  of  the  board  of  commissioners  of  Hon 
Homme  county.  'J'he  act  under  which  these  bonds  were  issued  seems 
to  contemplate  the  issuance  of  bonds  to  fund  the  ontstanchng  w.irrantH 
of  the  county  in  advance  of  the  time  they  are  to  bear  «latc.  '1'!"  - 
end  section  provides  "that  the  couiily  (-(»mmissioiu-rs  of  the  at.  i 

county,  on  the  passage  of  this  act.  shall  have  the  authority,  and  it  is 
hereby  made  their  fluty,  to  provide  that,  whenever  warr.inls  drawn 
upon  the   fund  hereinbefore  mentioned  shall  be  '  •      •     •     • 

such  warrant  shall  be  taken  up.  the  interest  r.'  "  to  tlic 

1st  day  of  July,  1878,     ♦     ♦     ♦ "     and  bond  (o  the 


374  QUASI   CORPORATIONS 

liolder  of  such  warrants.  And  section  6  provides :  "The  county  com- 
niissioners  *  *  *  shall,  at  the  first  session  of  the  board  after 
the  passage  of  this  act,  make  such  provisions  as  shall  be  necessary  and 
proper  for  carrying  out  the  provisions  of  this  act,  or  as  soon  there- 
after as  it  can  reasonably  be  done.     *     *     *  " 

As  the  act  was  approved  February  17,  1877,  it  is  quite  clear  that  the 
legislature  intended  to  give  the  board  power  to  proceed  at  once  to 
fund  these  warrants,  and  that  the  date  that  they  should  bear  was  in- 
serted in  the  act  for  the  purpose  of  fixing  a  time  up  to  which  interest 
on  the  warrants  should  be  calculated,  and  from  which  interest  on  the 
bonds  should  commence  to  run.  At  the  time  these  bonds  were  signed 
and  issued,  A.  M.  Young  was,  as  shown  by  the  commissioners'  rec- 
ord, the  chairman  of  the  board.  We  are  of  the  opinion,  therefore, 
that  this  objection  should  not  be  sustained.  Chickaming  v.  Carpen- 
ter, 106  U.  S.  663,  1  Sup.  Ct.  620,  27  L.  Ed.  307 ;  Town  of  Weyau- 
wega  V.  Ayling,  99  U.  S.  112,  25  L.  Ed.  470. 

The  second  objection  to  the  validity  of  these  bonds  is,  that  no  ac- 
tion was  ever  taken  by  the  commissioners  in  regard  to  the  issuing  of 
these  bonds,  and  no  provision  was  ever  made  by  them  for  funding  the 
outstanding  warrants  of  the  county,  as  provided  in  said  act,  and  that 
the  plaintiff  should  have  shown  that  such  action  by  the  commissioners 
was  had,  providing  for  the  funding  of  the  outstanding  warrants  of 
Bon  Homme  county,  and  authorizing  the  issuance  of  these  bonds,  to 
entitle  the  plaintiff  to  recover  in  this  action.  A  county  must  have 
legislative  authority  to  issue  bonds,  before  its  officers  can  bind  it  to 
the  payment  of  bonds  purporting  to  be  issued  on  its  account.  The 
public  can  act  only  through  its  authorized  agents,  and  it  is  not  bound 
until  all  who  are  required  to  participate  in  what  is  to  be  done  have 
performed  their  respective  duties.  Anthony  v.  Jasper  Co.,  101  U.  S. 
693,  25  L.  Ed.  1005;  Bank  v.  Bergen  Co.,  115  U.  S.  384,  6  Sup.  Ct. 
88,  29  Iv.  Ed.  430. 

The  law  under  which  the  county  of  Bon  Homme  derived  all  its 
powers  provided  that  the  county  commissioners  should  fund  the  out- 
standing indebtedness  of  Bon  Homme  county  that  should  exist  on  the 
1st  day  of  July,  1878.  The  power  of  the  board  under  the  law  was 
limited.  It  is  not  a  case  where  there  existed  in  the  board  a  general 
power  to  issue  negotiable  securities  of  the  county.  It  is  a  case  where 
there  was  no  power,  except  as  specifically  delegated  by  law  for  a  par- 
ticular purpose.  All  persons  taking  securities  of  public  corporations 
having  only  special  powers  must  see  to  it  that  the  conditions  prescribed 
for  the  exercise  of  the  power  existed.  As  an  essential  preliminary  to 
protection  as  a  bona  fide  holder,  authority  to  issue  them  must  appear. 
Bank  v.  Bergen  Co.,  supra;  Marsh  v.  Fulton  Co.,  10  Wall.  676,  19  L. 
Ed.  1040;  Cagwin  v.  Town  of  Hancock,  84  N.  Y.  532;  Floyd,  Ac- 
ceptances, 7  Wall.  676,  19  L.  Ed.  169.  Every  person  purchasing  such 
bonds  is  chargeable  with  notice  of  that  which  the  law  requires  him  to 
know,  and  he  is  chargeable  with  notice  of  what  is  contained  on  the 


COUNTY   BONDS  37o 

face  of  the  bonds  he  is  dealing  in;  and  if,  upon  the  face  of  the  bonds, 
the  law  authorizing  their  issue  is  referred  to.  he  is  bound  to  take 
notice  of  the  statute,  and  of  all  its  requirements. 

In  this  case  not  only  was  the  title  of  the  act  under  which  the  bonds 
were  issued  given  on  the  face  of  the  bond,  but  all  the  provisions  of  the 
act  were  printed  on  the  bonds.  It  will  be  observed  that  the  act  under 
which  these  bonds  purport  to  have  been  issued  conferred  upon  the 
commissioners  of  Bon  Homme  county  special  authority  to  fund  the 
outstanding  indebtedness  of  that  county  that  might  be  existing  on 
the  1st  day  of  July,  1878,  but  conferred  no  such  authority  upon  the 
chairman  and  clerk  of  said  commissioners.  It  was  the  county  com- 
missioners, and  the  commissioners  only,  that  could  make  the  necessary 
provisions  required  to  be  made  by  the  act  for  funding  this  outstanding 
indebtedness,  and  until  they  made  the  necessary  provisions,  and  au- 
thorized the  issuance  of  bonds,  no  bonds  legally  binding  ujjon  the 
county  could  be  issued.  In  other  words,  bonds  not  so  issueil  were  not 
the  bonds  of  the  county.  The  purchaser  was  conseciucntly  charged 
with  the  duty  of  ascertaining  the  fact  that  the  commissioners  had 
performed  the  duty  imposed  on  them,  and  that  authority  to  issue  said 
bonds  had  been  conferred  upon  the  chairman  and  clerk  of  the  board 
by  the  board  of  county  commissioners  of  Bon  llonnne  county.  It 
was  the  duty  of  the  purchaser  of  the  bonds  in  suit  to  have  ascertained 
by  an  examination  of  the  records  of  that  county  whether  or  nut  the 
board  of  county  commissioners  of  Bon  Homme  county  hail  made  the 
necessary  provisions  for  funding  the  outstanding  indebtedness  of  that 
county,  and  had  authorized  the  issuance  of  these  bonds  by  the  chair- 
man and  clerk.  Had  he  caused  such  an  examination  to  be  maile,  he 
would  have  been  advised  that  no  such  provisions  had  been  made,  and 
that  no  authority  had  been  given  by  the  board  for  the  issuance  of  these 
IxDnds,  and  that  they  were  not,  at  the  lime  they  were  issued,  obligatory 
upon  the  county. 

It  was  strenuously  contended  by  the  learned  counsel  for  the  rcsiwnd- 
ent  that  no  action  of  i1k-  board  of  county  commissioners  was  neces- 
sary; that  as  the  law  made  it  the  duty  of  the  connnissiuncrs  to  fund 
the  county  indebtedness,  the  chairman  and  clerk  couM  procercl  to  issue 
the  bonds,  as  they  did  do,  witholit  authority  from  the  board  to  act  in 
the  matter,  and  authorize  their  issuance.  W'c  cannot  so  hold.  The 
issuing  of  these  bonds  involved  the  perfornjancc  of  iniporlant  duties 
imposerl  upon  the  county  commissioners,  as  the  fiscal  agents  of  ihe 
county,  that  could  only  be  performed  by  tluin.     As  the  ai- 

thorizcd  the  connnissioners  to   fund   the  on'- '■•'■''•>"   ••'  '  it 

was  their  duty  to  ascertain  what  that  onlsi  is, 

to  provide  for  a  proper  examination  of  the  warrants  so  to  l>e  finulcd, 
and  determine  the  amount,  denonnnalion.  and  number  of  Imnds  to  \>c 
issued,  to  rcf|uire  the  t^ea"^n^er  of  the  county  to  n<»tr  such  farin  on 
his  bond  register  as  they  might  deem  necessary  in  order  to  fully  pro- 
tect the  countv    .nul  to  ni-nkr,  rrncrnMv.  such  rrgulati<ins  in  regard  to 


376  QUASI   CORPORATIONS 

the  issuing  of  said  bonds  as  they  might  deem  expedient,  and  finally 
to  authorize  the  issuance  of  the  bonds.  Until  these  acts  were  done,  the 
chairman  and  clerk  were  without  authority  to  act.  Any  other  rule 
would,  in  our  opinion,  be  fraught  with  too  much  danger  to  public  cor- 
porations. The  doctrine  now  established  making  the  acts  and  recitals 
of  the  duly-authorized  agents  of  the  county,  acting  within  the  scope 
of  their  authority,  obligatory  upon  the  corporation,  is  sufficiently  oner- 
ous without  adding  to  it  a  liability  for  acts  and  recitals  of  unauthor- 
ized agents.  Bank  v.  Bergen  Co.,  supra;  Whiteside  v.  U.  S.,  93  U. 
S.  247,  23  L.  Ed.  882;  County  of  Daviess  v.  Dickinson,  117  U.  S. 
657,  6  Sup.  Ct.  897,  29  L.  Ed.  1026;  Cagwin  v.  Town  of  Hancock, 
84  N.  Y.  532. 

The  learned  counsel  for  respondent  contends  that  the  defendant  is 
estopped  from  contesting  the  validity  of  these  bonds  by  reason  of  the 
recitals  therein  contained.  There  are  no  recitals  in  these  bonds  of  the 
existence  of  any  facts  that  the  chairman  and  clerk  of  the  board  were 
authorized  to  ascertain  and  determine.  The  effect  of  recitals  made 
by  a  board,  or  by  officers  authorized  to  make  them,  is  clearly  stated 
by  the  court  in  Bank  v.  Bergen  Co.,  supra :  "There  is  a  class  of  cases 
where  recitals  in  obligations  are  held  to  supply  such  proof  of  compli- 
ance with  the  special  authority  delegated  as  to  preclude  the  taking  of 
any  testimony  on  the  subject,  and  estop  the  obligor  from  denying  the 
fact.  These  have  generally  arisen  upon  municipal  bonds  authorized 
by  statute,  upon  the  vote  of  the  majority  of  the  citizens  of  a  particu- 
lar city,  county,  or  town,  and  in  which  certain  persons  or  officers  are 
designated  to  ascertain  and  certify  as  to  the  result.  If,  in  such  cases, 
the  bonds  refer  to  the  statute,  and  recite  a  compliance  with  its  pro- 
visions, and  have  passed  for  a  valuable  consideration  into  the  hands 
of  a  bona  fide  purchaser,  without  notice  of  any  defect  in  the  proceed- 
ings, the  municipality  has  been  held  to  be  estopped  from  denying  the 
truth  of  the  recitals.  The  ground  of  the  estoppel  is  that  the  officers 
issuing  the  bonds  and  inserting  the  recitals  are  agents  of  the  munici- 
pality, empowered  to  determine  whether  the  statute  has  been  followed, 
and  thus  bind  the  municipality  by  their  determination." 

Counsel  for  respondent  has  cited  several  cases  in  which  bonds  have 
been  issued  by  the  chairman  and  clerk  of  towns  and  counties  with  re- 
citals which  the  supreme  court  has  held  estopped  the  municipality,  but 
it  will  be  seen,  we  think,  from  an  examination  of  them,  that  the  prin- 
ciple upon  which  the  cases  were  decided  is  that  stated  by  Justice  Field 
in  the  Bergen  County  Case,  namely,  that  the  statute  imposed  upon  the 
officers  who  executed  the  bonds  certain  duties,  such  as  ascertaining 
the  result  of  an  election  or  vote  taken  upon  the  issuance  of  the  bonds, 
that  could  only  be  performed  by  such  officers.  *  *  *  jj^  Town  of 
Coloma  v.  Eaves,  92  U.  S.  484,  23  L.  Ed.  579,  also  cited  by  counsel 
for  respondent, — which  was  a  case  where  the  recovery  was  resisted 
by  the  town  mainly  upon  the  alleged  ground  of  the  want  of  power  in 
the  officers  of  the  town  to  issue  the  bonds  because  the  legal  voters 


COUNTY   BONDS  377 

of  the  town  had  not  been  notified  to  vote  upon  the  subscription  ques- 
tioned,—the  court  says:  "The  duty  of  ascertaining  [the  result  of  the 
vote]  was  plainly  intended  to  be  vested  somewhere,  and  once  for  all : 
and  the  only  persons  spoken  of  who  have  any  duties  to  perform  re- 
specting the  election,  and  action  consequent  upon  it,  are  the  town  clerk. 
and  the  supervisor  or  other  executive  officer  of  the  city  or  town.  It 
is  a  fair  presumption,  therefore,  that  the  legislature  inteiulod  that 
these  officers,  or  one  of  them,  at  least,  should  determine  whether  the 
requirements  of  the  act  prior  to  subscription  to  the  stock  of  the  rail- 
road company  had  been  met." 

These  cases  sufficiently  illustrate  the  principle  upon  which  this  class 
of  decisions  is  founded,  and  show  clearly  that  the  authority  of  such 
officers  to  sign  and  issue  the  bonds  is  derived  from  the  act  of  the 
legislature,  and  the  vote  or  election  held  thereunder,  and  not  from 
any  board  having  duties  to  perform  in  regard  to  the  matter ;  and  also 
show  that  the  recitals  made  by  such  officers  are  held  to  conclusively 
bind  the  corporation,  because  the  recitals  are  of  facts  it  is  made  the 
duty  of  such  officers  to  ascertain  and  determine  "once  for  all."  In 
the  case  at  bar  no  duties  of  this  kind  were  imposed  upon  the  chairman 
and  clerk  of  the  board,  or  any  duties  other  than  the  ordinary  clerical 
duty  of  signing  the  bonds  and  coupons,  when  authorized  so  to  do 
by  the  county  commissioners;  consequently  there  are  no  recitals  in 
these  bonds  that  they  were  authorized  to  make,  as  such  officers,  and 
the  alleged  recitals  do  not,  therefore,  conclude  the  county.  These 
bonds,  therefore,  being  issued  by  the  chairman  and  clerk  of  the  board, 
without  being  authorized  to  so  issue  them  by  the  county  commission- 
ers,   were   not  binding   upon   the   county. 

The  plaintiff,  not  relying  entirely  upon  the  validity  of  the  lK)nds  in  . 
suit,  introduced  evidence  tending  to  prove  that  the  county,  by  the 
acts  of  its  county  commissioners,  treasurer,  and  other  officers,  had 
ratified  the  act  of  the  chairman  and  clerk  of  the  board  in  is>uiiig  tiicsc 
bonds,  and  now  contends  the  county  is  estopped  from  drnviin,'  their 
validity.     *     *     ♦ 

It  seems  to  be  the  established  doctrine  «)f  the  courts,  state  as  well 
as  national,  that  municipalities  may,  not  only  by  recitals  in  Ininds, 
but  by  acts  of  ratification,  be  estoppcfl  from  .setting  up  irroj^ularitics 
in  the  issuance  of  bonds,  when  they  have  passed  int«»  the  li.indN  of 
bona  fide  holders  for  value,  before  maturity.  Ju<lj;e  Dillon,  in  his 
work  on  Municipal  Corporations,  (4th  Kd.)  §  548,  says:  "A%  to  irreg- 
ularities in  the  exercise  of  an  cxj)ress  power  to  issue  1  '  '  par- 
ticularly in  resjjcct  to  stc|)s  coiniertcd  with  |)rcliminar\  .  ■  ii.i.u.  ■n^,  the 
failure  of  the  nuniici])ality  or  of  the  tax-payer  to  enjoin  the  issue,  fol- 
lowed by  long  a(f|uiescence,  especially  when  this  is  accompanied  by 
affirmative  acts  which  recognize  the  validity  of  the  Iwnth.  such  as 
receiving  and  holding  the  stock  or  consideration  f«»r  the  !•  r 
paying  interest  on  tin  in  for  a  series  of  years,  has  been  held  •.■■  .  .-p 
the  municipality   from  defending,  on   tin-   rrf»nnd   n{  non-cdinpliancc 


378  QUASI   COUrORATIONS 

with  conditions  precedent,  especially  when  the  bonds,  as  is  usually 
the  case,  have  been  negotiated  for  value.  But  the  corporation  is  in 
no  case  estopped  from  setting  up  a  total  want  of  power  to  issue  the 
bonds."  Supervisors  v.  Schenck,  5  Wall.  782,  18  L.  Ed.  556;  County 
of  Ray  V.  Vansycle,  96  U.  S.  688,  24  L.  Ed.  800;  Pendleton  County  v. 
Amy,  13  Wall.  306,  20  L.  Ed.  579;  Burr  v.  City  of  Carbondale,  76 
111.  455;  Rogers  v.  Burlington,  3  Wall.  654,  18  L.  Ed.  79;  Bissell  v. 
Tefifersonville,  24  How.  300,  16  L.  Ed.  664 ;  State  v.  Van  Home,  7 
Ohio  St.  331 ;  Shoemaker  v.  Goshen  Tp.,  14  Ohio  St.  587;  Butler  v. 
Dunham,  27  111.  477 ;  Steines  v.  Franklin  County,  48  Mo.  176,  8  Am. 
Rep.  87;   Barrett  v.  County  Court,  44  Mo.  201. 

In  this  case  the  county  commissioners  were  fully  authorized  by  the 
act  of  the*  legislature  to  fund  the  indebtedness  of  the  county,  and  issue 
the  bonds  of  the  county  therefor,  and  hence  it  was  within  the  powers 
of  the  board  and  the  county  to  ratify  the  unauthorized  act  of  its  chair- 
man and  clerk  in  the  issuance  of  the  bonds  in  suit.  That  this  has 
been  done  in  this  case  is  fully  shown  by  the  records  introduced  in 
evidence.  A  careful  examination  of  this  evidence  shows  that,  at  a 
meeting  of  the  board  of  commissioners  held  in  October,  1877,  a  few 
months  after  the  bonds  in  suit  were  issued,  an  order  was  entered 
reciting  that  the  treasurer  had  presented  the  warrants  taken  in  ex- 
change for  bonds  numbered  from  1  to  33,  inclusive,  and,  being  found 
correct,  the  same  were  destroyed  by  burning  in  the  presence  of  the 
board.  This  order  was  published  in  the  official  newspaper  of  the 
county  the  same  month.  At  the  same  time  an  entry  was  shown  in 
the  account  of  Treasurer  Wells,  as  follows :  "By  amount  of  warrants 
exhibited  and  examined  by  the  board  of  county  commissioners,  and 
destroyed  in  presence  of  board,  by  burning,  $14,900."  In  January, 
1879,  a  report  was  made  by  a  committee  appointed  by  the  board,  in 
which,  among  the  liabilities  of  the  county,  is  the  item  of  amount  of 
bonds  issued  in  1878,  $27,700,  and  at  which  meeting  of  the  board  John 
Stafford,  the  witness  introduced  on  the  part  of  the  defendant,  appears 
to  have  been  present,  and  this  report  was  accepted  and  approved  by 
the  board.  At  this  same  meeting  the  record  shows  that  warrants 
taken  in  exchange  for  county  bonds  from  number  34  to  61,  inclusive, 
amounting  to  $12,800,  were  presented  by  the  county  treasurer,  exam- 
ined by  the  board  and  found  correct,  and  destroyed  by  burning  in  pres- 
ence of  the  board.  A  large  number  of  entries  from  the  records  were 
given  in  evidence  of  the  levying  and  collection  of  taxes  for  the  years 
1878,  79,  'SO,  '81,  and  '82,  sufficient,  not  only  to  pay  the  interest  on 
the  $5,500  1875  bonds,  shown  by  the  report  of  the  committee  to  be 
outstanding,  but  also  the  interest  on  the  1878  bonds.  It  will  be  ob- 
served that  it  only  required  $550  to  pay  the  annual  interest  on  the 
1875  bonds,  yet  the  amount  levied  each  year,  for  interest,  varied  from 
$2,499.12,  in  1878,  to  $3,676.16,  in  1881.  The  coupons  cut  from  the 
bonds  in  suit,  bearing  date  July  1,  1878,  were  regularly  paid,  semi- 
annually, up  to  January  10,  A.  D.   1882,  making  seven  payments  in 


COUNTY   BONDS  379 

all,  which  payments  were  regularly  allowed  by  the  commissioners  in 
their  settlements  with  the  county  treasurer,  and  not  until  about  July, 
1882,  does  the  legality  of  these  bonds  seem  to  have  been  in  any  man- 
ner questioned,  by  either  the  county  commissioners  or  the  county  of 
Bon  Homme. 

The  plaintiff  proved  on  the  trial  that  he  purchased  the  bonds  in  suit 
— being  a  part  of  the  July,  1877,  issue — in  1880,  and  paid  their  full 
par  value,  and  without  notice  of  any  irregularity  in  their  issue,  or  of 
any  defects  in  the  same.  Whatever  exception  the  people  of  Bon 
Homme  county  might  have  taken  to  these  bonds  at  the  time  they  were 
issued,  it  is  certain  they  took  none,  either  as  individuals  or  through 
their  authorized  agents,  the  county  commissioners,  until  long  after 
these  bonds  had  passed  into  the  hands  of  innocent  purchasers  for 
value.  They  stood  by  and  permitted  taxes  to  be  levied  to  pay  the 
interest,  and  from  which  the  interest  on  the  coupons  for  several  years 
was  promptly  met,  and  paid  without  protest,  remonstrance,  or  com- 
plaint. And  now  it  is  asked  that  the  irregularity  in  the  issuance  of 
these  bonds,  in  the  acts  of  their  own  officers,  which  they  might  have 
avoided  by  prompt  action,  but  which  they  so  long  acquiesced  in  and 
repeatedly  ratified,  may  be  set  up  to  defeat  the  bonds  in  this  suit  on 
the  part  of  an  innocent  purchaser  for  full  value,  and  who  has,  or 
may  have,  relied  upon  the  long  acquiescence  and  repeated  acts  of 
ratification.  The  records  of  the  county  show  that  the  warrants  sur- 
rendered up  for  these  bonds  were  destroyed  in  1877,  by  the  agents 
of  the  defendant. 

To  compel  an  innocent  purchaser  to  now  litigate  with  the  county, 
after  a  lapse  of  more  than  10  years,  the  validity  of  these  warrants, 
when  the  warrants  themselves  are  destroyed,  and  the  facts  relating 
to  them  have  almost,  if  not  entirely,  passed  from  memory,  would, 
it  seems  to  us,  be  doing  manifest  injustice  to  the  present  holders  of 
the  bonds.  So  far  as  the  records  of  the  county  show,  the  county  has 
received  full  consideration  for  these  bonds.  Warrants,  examined  by 
defendant's  own  agents,  the  county  commissioners,  and  found  correct, 
for  the  full  amount  of  the  bonds,  were  surrendered  up  and  destroyed. 
No  offer  was  made  to  show  that  these  warrants  were  not  regularly  an<l 
properly  issued  and  valid  obligations  of  the  county,  and,  in  tiie  ab- 
sence of  anything  in  this  record  showing  that  the  warrants  were  not 
legal  and  valid,  it  is  our  duty  to  assume  they  were  so.  The  county  can- 
not restore  them  to  the  holders  of  the  bonds,  nor  can  it  in  justice  ask 
to  be  relieved  from  the  pavment  of  the  bonds,  while  it  retains  the  con- 
sideration for  which  thev  were  issued.  We  think  this  is  a  strong  and 
clear  case  for  the  application  of  the  doctrine  of  estoppel.  The  claims 
of  good  faith  and  fair  dealing  are  as  obligatory  upon  corporations  and 
communities  as   upon   individuals.     ♦     ♦     ♦     Allirmed. 


WENT  PUDI.IHIJINO  CO..  PBINTEIW.  »T.  TKVL,  JHWK. 


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UNITERSITY  OF  CALIFORNjlA. 

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